MORAL   OVERSTRAIN 


MORAL  OVERSTRAIN 


BY 


GEORGE  W.  ALGER 


BOSTON    AND    NEW  YORK 
HOUGHTON,  MIFFLIN  AND  COMPANY 

tesiDc  press,  <£ambnb0e 
1906 


COPYRIGHT  1906  BY  GEORGE  W.  ALGER 
ALL  RIGHTS  RESERVED 

Published  April  7906 


TO  MY  WIFE 


260685 


CONTENTS 

I.  MORAL  OVERSTRAIN  ....  i 
II.  SENSATIONAL  JOURNALISM  AND 

THE  LAW ig 

III.  UNPUNISHED    COMMERCIAL 

CRIME 49 

IV.  GENEROSITY  AND  CORRUPTION  95 
V.  THE  LITERATURE  OF  EXPOSURE  115 

VI.  THE  CITIZEN  AND  THE  JURY  .  135 
VII.  SOME    EQUIVOCAL    RIGHTS    OF 

LABOR 159 

VIII.  CRIMINAL  LAW  REFORM      .     .  183 


I 

MORAL   OVERSTRAIN 


MORAL   OVERSTRAIN 

IN  mechanics  it  is  part  of  the  engineer's 
profession  to  consider  carefully  the 
amount  of  physical  weight  and  pressure 
which  various  substances  will  bear, — 
how  many  pounds  a  given  girder  will 
sustain;  how  much  an  upright.  It  is 
upon  this  science  and  its  carefully  fig- 
ured mathematical  details  that  the  safety 
and  well-being  of  the  housed  commu- 
nity so  largely  depend.  Sometimes,  to  be 
sure,  even  the  most  carefully  estimated 
plans  are  spoiled  by  some  unforeseen  and 
unforeseeable  weakness  in  the  structural 
material,  and  it  gives  way  at  a  pressure 
or  strain  apparently  none  too  great  for 
its  endurance.  But  these  occasional  ob- 
sessions of  inanimate  nature  do  not  dis- 
courage the  engineer,  or  make  him  aban- 
don his  interminable  mathematics.  In 


4  '       '  'MORAL  OVERSTRAIN 

spite  of  them,  or  rather  on  account  of 
them,  he  continues  his  studies  so  that  he 
may  better  succeed  in  placing  on  the  ma- 
terials which  he  uses  no  grievous  burden, 
and  may  not  subject  them  to  a  stress  or 
strain  forbidden  by  natural  law.  Col- 
lapses of  buildings  are  less  frequent,  and 
community  life  becomes  safer,  as  this 
expert  knowledge,  founded  on  study 
and  experience,  grows  broader  and  surer. 
It  is  rather  a  sad  thing,  when  one 
thinks  of  it,  that  the  field  of  this  sort 
of  mathematics  has  such  definite  lim- 
itations, and  that  we  cannot  by  mathe- 
matical formulae  calculate  moral  stress 
and  strain,  and  ascertain  how  far  we 
can  safely  go  in  placing  burdens  on  the 
characters  of  those  with  whom  we  do 
business,  or  of  those  with  whom  we 
have  social  intercourse.  Consider,  for 
example,  the  great  court  calendars  in 
the  large  cities.  How  many  thousands 
of  those  cases,  formal  announcements 
of  men  at  war  with  one  another,  or  of 


MORAL   OVERSTRAIN  5 

society  itself  at  war  with  the  individual, 
are  really  nothing  more  nor  less  than 
examples  of  the  unfortunate  results  of 
moral  overstrain.  One  man  has  placed 
too  great  a  burden  on  the  moral  strength 
of  another,  and  there  has  been  a  break  or 
a  total  collapse.  And  when  that  collapse 
comes,  note  the  difference  in  the  proced- 
ure which  follows.  When  the  building 
wall  cracks,  or  at  the  first  observable 
indication  of  insecurity  of  foundation, 
the  builder's  first  thought  is  to  preserve 
the  building,  to  relieve  the  strain  on  the 
weak  spot,  to  strengthen  its  supports,  and 
to  reinforce  its  foundation.  There  has 
been  no  corresponding  practice  yet  de- 
vised which  may  be  followed  when  the 
moral  crash  comes  and  a  business  man's 
character  goes  to  pieces,  or  when  a  thief 
or  murderer  is  brought  to  the  bar  of  crim- 
inal justice.  There  is  no  " jacking-up  " 
process  for  overstrained  morals  to  be 
found  in  the  law  courts. 

We  take  philosophically  enough  the 


6  MORAL   OVERSTRAIN 

daily  moral  breakdown  of  our  fellow 
men,  and  ordinarily  do  not  complain  to 
Providence  against  our  inability  to  as- 
certain with  mathematical  certainty  the 
extent  of  the  confidence  we  can  safely 
repose  in  the  people  with  whom  we  have 
intercourse.  It  has  always  been  so  and 
always  will  be.  We  cannot  apply  math- 
ematics to  human  conduct.  The  fidel- 
ity insurance  corporations  which  have 
sprung  up  within  recent  years  have,  to  be 
sure,  their  systems  based  on  experience 
for  estimating  moral  hazards;  and  they 
have  curious  and  exceedingly  interesting 
theories  of  moral  probabilities  by  which, 
for  example,  they  estimate  the  chances 
of  defalcation  by  an  employee  in  a  given 
employment  in  which  given  opportuni- 
ties for  wrong-doing  are  not  counterbal- 
anced by  certain  systems  of  inspection 
or  supervision.  These  corporations  and  a 
few  large  financial  institutions  apparently 
recognize  the  necessity  of  considering 
moral  risks  somewhat  in  the  way  in 


MORAL   OVERSTRAIN  7 

which  the  engineer  estimates  upon  the 
girder,  how  he  can  make  it  perform  its 
useful  functions  in  a  house  without  being 
broken  down  by  overstrain  and  bringing 
calamity  with  its  fall.  The  policy  of 
the  financial  institutions  in  dealing  with 
this  question  deserves  a  study  by  itself. 
Their  method  involves,  generally,  in  its 
application  to  subordinate  employees, 
a  complex  and  carefully  studied  busi- 
ness system  filled  with  "  checks  and 
balances,"  with  frequent  inspections 
and  examinations,  which  are  intended 
to  reduce  the  opportunity  for  successful 
wrong-doing  to  a  minimum.  The  pay 
of  the  minor  employees  of  a  banking 
house  who  handle  fortunes  daily  is,  as  a 
rule,  pitifully  small,  showing  a  conscious 
purpose  in  these  institutions  of  relying 
principally  upon  a  practical  certainty  of 
detection,  coupled  with  a  remorseless 
and  relentless  severity  in  prosecution 
and  punishment,  as  a  relief  for  the  se- 
vere moral  strain  upon  employees  whose 


i 


8  MORAL   OVERSTRAIN 

opportunities  and  temptations  for  wrong- 
doing are,  from  the  nature  of  the  employ- 
ment, large. 

Except  in  these  financial  institutions 
and  these  fidelity  insurance  corpora- 
tions, there  seems  to  be  in  practical  op- 
eration no  rational  system  for  estimat- 
ing or  relieving  the  strain  upon  morals 
which  business  life  necessarily  involves. 
Outside  of  this  narrow  group,  the  only 
theory  which  seems  current  is  one  based 
upon  a  generality,  the  fallacy  in  which 
receives^almost  daily  demonstration,  and 
yet  one  which  is  firmly  fixed  in  the  pub- 
lic mind.  It  is  a  theory  which  is  as  far 
as  possible  the  absolute  opposite  of  that 
upon  which  the  engineer  deals  with  the 
question  of  strain  and  stress  in  mechan- 
ics. This  theory,  curiously  enough,  has 
a  quasi-religious  origin.  It  is  based  upon 
that  duty  of  faith  concerning  which  we 
hear  so  much  in  this  generation.  We 
are  realizing  now,  as  no  previous  gen- 
eration has  realized,  the  importance  and 


MORAL   OVERSTRAIN  9 

power  of  the  element  of  faith,  both  to 
our  happiness  and  to  our  capacity  for 
usefulness.  The  word  itself  is  a  noble 
one,  and  has  the  greatest  importance,  not 
solely  in  its  connection  with  the  unre- 
vealed  part  of  religion,  but  with  our 
daily  work  in  business  as  well.  It  is  cer- 
tain that  we  must  have  faith  in  our  fel- 
low men.  It  is  undoubtedly  true  that 
one  of  the  worst  misfortunes,  as  well  as 
one  of  the  most  singular  marks  of  weak- 
ness and  incapacity  in  either  man  or 
woman,  is  the  absence  of  faith  and  the 
habit  of  suspicion.  As  Lord  Bacon  well 
said,  "  Suspicions  amongst  thoughts  are 
like  bats  among  birds.  They  ever  fly 
by  twilight.  Certainly  they  are  to  be 
repressed,  or  at  least  well  guarded,  for 
they  cloud  the  mind,  they  lose  friends, 
and  they  check  with  business,  whereby 
business  cannot  go  on  currently  and  con- 
stantly." 

It  is  undoubtedly  true  that  faith  itself 
is  something  essential  to  the  happiness 


io  MORAL   OVERSTRAIN 

of  mankind,  whether  one  considers  it  as 
indicating  faith  in  God,  or  in  man,  or  in 
both.  Our  great  men,  both  in  public  and 
in  private  life,  have  been  men  who  had 
trust  and  faith  in  their  fellows.  It  cannot 
be  too  often  repeated  that  this  quality 
of  faith  is  one  of  the  strongest  and  finest 
of  those  vital  priciples  which  are  essen- 
tial to  the  highest  type  of  character. 
But,  as  La  Rochefoucauld  says,  "the 
truth  has  not  done  so  much  good  in  the 
world  as  the  appearance  of  truth  has  done 
evil."  The  trouble  with  this  constant 
iteration  in  these  days  of  the  necessity 
for  us  to  have  faith  in  our  fellows  is  that 
it  fails  to  note  the  necessary  and  logical 
limitations  of  the  doctrine.  The  engineer 
or  builder  may  have  faith  in  a  span  or 
girder  he  uses,  but  he  does  not  for  that 
reason  allow  an  unlimited  pressure  to  fall 
upon  it.  On  the  other  hand,  the  rule  of 
faith  which  is  commonly  preached  to  us 
from  the  pulpit  is  generally  based  upon 
the  assumption  that  faith  itself  has  the 


MORAL   OVERSTRAIN  n 

unique  quality  or  power  of  creating 
strength  where  it  puts  pressure,  and  that 
the  rules  of  natural  or  physical  law  can- 
not be  applied  in  this  regard  to  the  un- 
seen structural  materials  of  the  spiritual 
world.  How  many  times,  for  example, 
have  we  all  heard,  in  one  form  or  another, 
the  pathetic  anecdote  of  the  malefactor 
turned  from  his  projected  crime  by  some 
one  trusting  him,  or  of  the  criminal 
placed  with  a  full  opportunity  of  crime 
immediately  before  him,  with  escape 
practically  certain,  who  has  been  deterred 
from  his  evil  purpose  simply  by  the 
moral  force  which  the  trust  and  confi- 
dence of  another  have  created  in  him. 

This  illustration  of  the  power  of  faith 
is  one  used  most  frequently  by  persons 
whose  understanding  of  spiritual  matters 
and  things  of  God  far  overbalances  their 
judgment  and  their  practical  insight  into 
human  character.  It  is  a  very  beautiful 
story  when  well  told,  and  we  all  have  a 
sentimental  side  to  our  natures  to  which 


iz  MORAL   OVERSTRAIN 

it  appeals.  But  while  these  occasional 
cases  may  and  undoubtedly  do  exist, 
to  base  a  theory  of  conduct  on  them  is 
hardly  less  foolish  than  for  the  reader 
of  sentimental  novels  to  assume  that  in 
the  world  of  men  truth  crushed  to  earth 
always  rises  uninjured,  and  that  virtue 
always  triumphs  in  the  last  chapter. 

A  doctrine,  the  precise  opposite  to  this 
rule  of  faith,  I  heard  as  it  was  laid  down 
impressively  some  years  ago  by  a  great 
criminal  jurist.  His  long  daily  experi- 
ence on  the  bench  with  human  weakness, 
while  it  had  enlarged  his  great  natural 
insight  into  character  and  motive,  had 
neither  soured  him  nor  made  him  cyni- 
cal. He,  certainly,  could  speak  on  the 
subject  of  moral  strain  with  the  voice  of 
authority.  It  was  in  the  old  court  of 
Oyer  and  Terminer  in  New  York,  and 
Recorder  Smyth  had  just  passed  sentence 
on  a  young  man  who  had  been  convicted 
of  robbery  in  snatching  a  watch  from 
a  lady  in  the  shopping  district  of  Sixth 


MORAL   OVERSTRAIN  13 

Avenue.  It  was  in  the  fall  of  1892,  when 
times  were  hard,  and  the  streets  and  park 
benches  were  filled  with  gaunt,  hungry- 
faced  creatures,  out  of  work  and  full  of 
misery.  The  lady  had  been  shopping  all 
day  long  in  streets  thronged  with  these 
people,  wearing  a  small  jeweled  watch 
attached  to  her  dress  by  a  chatelaine. 
This  young  man,  who  was  scarcely  more 
than  a  boy,  had  seen  the  watch,  and, 
snatching  it,  had  attempted  to  escape  in 
the  crowd,  when  he  was  caught  After  the 
Recorder  had  passed  sentence,  sending 
this  young  fellow  to  penal  servitude,  he 
turned  and  addressed  a  few  remarks  to 
the  prosecutrix,  who  stood  near  the  bar, 
weeping  sympathetically,  and  mopping 
up  her  copious  tears  with  her  handker- 
chief. The  tears  were  even  more  copi- 
ous, though  from  a  different  emotion, 
when  the  judge  had  finished.  "  Madam," 
he  said,  "  it  is  one  of  the  great  defects 
of  the  criminal  law  that  it  has  no  ade- 
quate punishment  for  those  who  incite 


14  MORAL   OVERSTRAIN 

their  fellows  to  crime.  If  it  were  in  my 
power  to  do  so,  I  can  assure  you  I  should 
feel  it  a  pleasanter  duty  to  impose  an 
even  severer  sentence  than  the  one  I 
have  just  rendered,  on  the  vain  woman 
who  parades  up  and  down  the  crowded 
streets  of  this  city,  filled  as  they  are  to- 
day with  hungry  people,  wearing  osten- 
tatiously on  her  dress,  insecurely  fastened, 
a  glittering  gewgaw  like  this,  tempting 
a  thousand  hungry  men  to  wrong-doing. 
There  are,  in  my  judgment,  two  crimi- 
nals involved  in  this  matter,  and  I  sin- 
cerely regret  that  the  law  permits  me  to 
punish  only  one  of  them." 

These  rather  caustic  remarks  of  the 
old  Recorder  have  a  much  broader  scope 
than  merely  an  application  to  the  women 
who  love  to  display  costly  finery.  How 
many  thousands  of  business  men  there 
are  who  manage  their  affairs  in  slipshod, 
slovenly  fashion,  and  who  complain  bit- 
terly of  the  abuse  of  the  "  perfect  con- 
fidence "  which  they  have  reposed  in 


MORAL   OVERSTRAIN  15 

their  employees.  My  own  notion  of  this 
"  perfect  confidence  "  is  that  in  ninety 
cases  out  of  a  hundred  it  is  not  genuine 
confidence  at  all,  but  a  mere  excuse  for 
business  shiftlessness  or  lack  of  system. 
The  law  relating  to  actions  for  personal 
injuries  provides  that  a  man  whose  body 
has  been  injured  by  the  carelessness  of 
another  must,  in  order  to  entitle  him  to 
claim  damages,  prove  not  only  that  care- 
lessness, but  also  his  own  freedom  from 
negligence  contributing  to  or  causing 
the  injury.  If  every  business  man  who 
suffers  from  a  defaulting  employee  were 
obliged  to  prove  not  only  the  employee's 
crime,  but  the  absence  of  substantial  busi- 
ness carelessness  on  his  own  part,  which 
afforded  both  the  opportunity  and  the 
temptation  for  the  offense,  how  few  con- 
victions of  these  defaulters  there  would 
be  !  It  is  a  great  misfortune  that  those 
who  speak  so  eloquently  and  so  often  on 
the  duty  of  "  faith  in  man,"  and  who  ex- 
pound this  doctrine  as  though  it  had  no 


1 6  MORAL   OVERSTRAIN 

limitations  or  qualifications  whatever,  do 
not  devote  at  least  a  substantial  portion 
of  their  attention  to  expounding  ear- 
nestly the  equally  important  duty  which 
each  man  owes  his  fellow  of  not  throw- 
ing unnecessary  moral  stumbling-blocks 
in  his  way.  It  is  curious  that  almost  the 
only  "  temptation  "  which  receives  any 
particular  attention  from  moralists,  either 
in  the  pulpit  or  elsewhere,  is  that  occa- 
sioned by  one  man  offering  spirituous 
beverages  to  another  who  may  be  inclined 
to  indulge  in  potations  to  excess.  By 
some  odd  distortion  of  moral  values,  the 
custom  of  "  treating  "  has  been  singled 
out  as  though  it  were  the  greatest  or 
most  important  of  those  actions  or  omis- 
sions by  which  we  cause  our  neighbors 
or  employees  to  offend.  Who  ever  heard 
a  sermon  or  lecture  on  the  duty  of  keep- 
ing reasonably  strict  oversight  on  one's 
employees,  or  on  the  duty  of  having  a 
business  system  which  shall  reduce  the 
opportunities  of  dishonesty  to  a  mini- 


MORAL   OVERSTRAIN  17 

mum  ?  The  duty  of  not  putting  on  the 
character  of  another  a  greater  burden 
than  it  can  safely  bear  is  as  important  as 
any  duty  in  the  realm  of  morals,  and  the 
matter  of  temperance  is  only  one  branch 
of  it,  and  by  no  means  the  most  impor- 
tant. An  examination  of  the  daily  crim- 
inal calendars  in  the  courts  of  the  large 
cities  conclusively  proves  this  fact.  In 
early  days,  when  property  was  mainly 
in  land  or  its  products,  and  when  busi- 
ness life  moved  more  slowly  than  it  does 
in  these  flush  times,  the  temptations  and 
opportunities  for  crimes  against  property 
were  far  less  frequent.  We  are  not  essen- 
tially a  systematic  people.  Our  tendency 
is  to  do  business  on  as  large  a  scale  as 
possible,  without  that  regard  for  detail 
which  is  exhibited  in  the  more  cumbrous 
business  methods  of  countries  in  which 
the  margins  of  profit  are  narrower,  and 
where  commercial  transactions  are  not 
conducted  with  the  astonishing  rapidity 
which  characterizes  our  own.  To  a  large 


1 8  MORAL    OVERSTRAIN 

extent  these  defects  in  system  are  more 
or  less  necessary  to  and  inherent  in  these 
peculiar  methods  and  habits  of  our  busi- 
ness life.  They  are  nevertheless  defects, 
and  should  not  be  so  consistently  ignored 
and  overlooked  as  they  generally  have 
been  in  the  past.  We  are  paying  greater 
attention  yearly  to  the  physical  discom- 
forts of  the  worker,  trying  to  relieve  the 
overburdened,  and  to  lighten  the  load  of 
hard  work  which  has  fallen  so  heavily  in 
our  struggle  for  commercial  supremacy, 
particularly  on  the  women  and  children. 
This  is  all  excellent,  but  we  must  remem- 
ber that  we  have  no  more  right  to  over- 
load a  man's  morals  than  his  back,  and 
that  while  it  is  a  duty  as  well  as  a  privi- 
lege to  have  faith  in  our  fellows,  we 
should  temper  that  faith  with  common 
sense,  so  that  our  faith  may  be  to  them  a 
help  and  a  support  rather  than  a  stum- 
bling-block and  a  cause  of  offense. 


II 

SENSATIONAL  JOURNALISM 
AND  THE  LAW 


SENSATIONAL  JOURNALISM 
AND  THE  LAW 

So  much  has  been  said  in  recent  years 
concerning  the  methods  and  policies  of 
sensational  journalism  that  a  further 
word  upon  a  topic  so  hackneyed  would 
seem  almost  to  require  an  explanation 
or  an  apology.  Current  criticism,  how- 
ever, for  the  most  part,  has  been  con- 
fined to  only  one  of  its  many  character- 
istics,— its  vulgarizing  influence  on  its 
readers ;  by  its  bad  taste,  by  its  daily  of- 
fenses against  the  actual,  though  as  yet 
ideal,  right  of  privacy,  by  its  arrogant 
boastfulness,  mawkish  sentimentality, 
and  a  persistent  and  systematic  distor- 
tion of  values  in  events. 

This,  the  most  noticeable  feature  of 
yellow  journalism,  is  indicative  rather 
of  its  character  than  of  its  purpose.  In 


22        SENSATIONAL  JOURNALISM 

considering,  however,  the  present  sub- 
ject, —  sensational  journalism  in  its 
relation  to  the  making,  enforcing,  and 
interpreting  of  law,  —  we  enter  a  dif- 
ferent field,  that  of  the  conscious  poli- 
cies and  objects  with  and  for  which 
these  papers  are  conducted.  The  main 
business  of  a  newspaper  as  defined  by 
journalists  of  the  old  school  is  the  col- 
lection and  publication  of  news  of  gen- 
eral interest  coupled  with  editorial  com- 
ment upon  it.  The  old-time  editor  was 
a  ruminative  and  critical  observer  of 
public  events.  This  definition  of  the 
functions  of  a  newspaper  was  long  ago 
scornfully  cast  aside  as  absurdly  anti- 
quated, and  insufficient  to  include  the 
myriad  circulation-making  enterprises 
of  yellow  journalism.  These  papers  are 
not  simply  purveyors  of  news  and  com- 
ment, but  have  what  may  be  called, 
for  lack  of  a  better  term,  constructive 
policies  of  their  own.  In  the  making 
of  law,  for  example,  not  content  with 


AND    THE   LAW  23 

mere  criticism  of  legislators  and  their 
doings,  the  new  journalism  conceives 
and  exploits  measures  of  its  own,  drafted 
by  its  own  counsel,  and  introduced  as 
legislative  bills  by  statesmen  to  whom 
flattering  press  notices  and  the  publica- 
tion of  an  occasional  blurred  photograph 
are  a  sufficient  reward.  Not  infrequently, 
measures  thus  conceived  and  drafted  are 
supported  by  specially  prepared  "  mon- 
ster petitions,"  containing  thousands  of 
names,  badly  written  and  of  doubtful 
authenticity,  of  supposed  partisans,  and 
by  special  trains  filled  with  orators  and 
a  heterogeneous  rabble  described  in  the 
news  columns  as  "  committees  of  citi- 
zens," who  at  critical  periods  are  col- 
lected together  and  turned  loose  upon 
the  assembled  lawmakers  as  an  impres- 
sive object  lesson  of  the  public  interest 
fervidly  aroused  on  behalf  of  the  news- 
paper's bill. 

The  ethics  of  persuasion  is  an  interest- 
ing subject.     It  falls,  however,  outside 


24        SENSATIONAL  JOURNALISM 

the  scope  of  this  article.  It  is  impossible 
to  lay  down  any  hard  and  fast  rule  by 
which  to  determine  in  all  cases  what 
form  of  newspaper  influence  is  legiti- 
mate and  what  is  illegitimate.  The  most 
obvious  characteristic  of  yellow  journal- 
ism in  its  relation  to  lawmaking  is  that 
it  prefers  ordinarily  to  obtain  its  ends 
by  the  use  of  intimidation  rather  than 
by  persuasion.  The  monster  petition 
scheme  just  referred  to  is  merely  one 
illustrative  expression  of  this  preference. 
When  a  newspaper  of  this  type  is  inter- 
ested in  having  some  official  do  some 
particular  thing  in  some  particular  way, 
it  spends  little  of  its  space  or  time  in 
attempting  to  show  the  logical  propriety 
or  necessity  for  the  action  it  desires.  It 
seeks  first  and  foremost  to  make  the 
official  see  that  the  eyes  of  the  people  are 
on  Mm,  and  that  any  action  by  him 
contrary  to  that  which  the  newspaper 
assures  him  the  people  want  would 
be  fraught  with  serious  personal  conse- 


AND   THE   LAW  25 

quences.  The  principal  point  with  these 
papers  is  always  "  the  people  demand  " 
(in  large  capitals)  this  or  that,  and  the 
logic  or  reason  of  the  demand  is  ob- 
scured or  ignored.  It  is  the  headless 
Demos  transformed  into  printer's  ink. 
\  If  by  any  chance  an  official,  so  unfor- 
tunate as  to  have  ideas  of  his  own  as 
to  how  his  office  should  be  conducted, 
proves  obdurate  to  the  demands  of  the 
printed  voice  of  the  people,  he  becomes 
the  target  for  newspaper  attacks,  calcu- 
lated to  destroy  any  reputation  he  may 
previously  have  had  for  intelligence,  so- 
briety of  judgment,  or  public  efficiency, 
his  tormentor,  so  far  as  libel  is  concerned, 
keeping,  however,  as  Fabian  says,  "oti 
the  windy  side  of  the  law."  An  amus- 
ing illustration  of  this  kind  of  warfare 
occurred  in  New  York  some  years  ago, 
when  for  several  weeks  one  of  these 
newspapers  published  daily  attacks  upon 
the  president  of  the  Board  of  Police 
Commissioners,  because  this  commis- 


26        SENSATIONAL  JOURNALISM 

sioner  refused  to  follow  the  newspaper 
theories  of  the  proper  way  of  enforcing, 
or  rather  not  enforcing,  the  Excise  Law. 
The  newspaper  took  the  position  that 
while  the  powers  of  the  Police  Depart- 
ment were  being  largely  turned  to  fer- 
reting out  saloon-keepers  who  were  keep- 
ing open  after  hours  or  on  Sundays,  the 
detection  of  serious  crimes  was  being 
neglected,  and  that  a  "carnival  of  crime," 
to  use  the  picturesque  wording  of  its 
headlines,  was  being  carried  on  in  the 
city.  Finally,  in  one  of  its  issues  the 
paper  published  a  list  of  thirty  distinct 
criminal  offenses  of  the  most  serious 
character,  such  as  murder,  felonious  as- 
sault, burglary,  and  grand  larceny,  all 
alleged  to  have  been  committed  within 
a  week,  and  in  none  of  which,  it  asserted, 
had  any  criminal  been  captured  nor  any 
stolen  property  been  recovered.  Events 
following  immediately  upon  this  last  pub- 
lication showed  that  the  newspaper  had 
erred  grievously  in  its  estimate  of  this 


AND   THE   LAW  27 

particular  official  under  attack.  A  few 
days  later,  the  police  commissioner,  Mr. 
Roosevelt,  published  in  the  columns  of 
all  the  other  newspapers  in  New  York 
the  result  of  his  own  personal  investi- 
gation of  these  thirty  items  of  criminal 
news,  showing  conclusively  that  twenty- 
eight  of  them  were  canards  pure  and 
simple,  and  that  in  the  remaining  two 
police  activity  had  brought  about  results 
of  a  most  satisfactory  kind.  Following 
this  statement  of  the  facts  was  appended 
an  adaptation  of  some  fifteen  or  twenty 
lines  from  Macaulay's  merciless  essay 
on  Barrere,  perhaps  the  finest  philippic 
against  a  notorious  and  inveterate  liar 
which  the  English  language  affords,  so 
worded  that  they  should  apply  not  merely 
to  the  newspaper  which  published  this 
spurious  list  of  alleged  crimes,  but  to  the 
editor  and  proprietor  personally.  The 
carnival  of  crime  ended  at  once. 

It  is,  of  course,  impossible  to  deter- 
mine accurately  the  extent  of  newspaper 


28        SENSATIONAL  JOURNALISM 

influence  upon  legislation  and  the  con- 
duct of  public  officials  by  these  syste- 
matic attempts  at  bullying.  Making 
all  due  allowance,  however,  there  have 
been  within  recent  years  many  signifi- 
cant illustrations  of  the  influence  of  yel- 
low journalism  upon  the  shaping  of  pub- 
lic events.  Mr.  Creelman  is  quite  right 
in  saying,  as  he  does  in  his  interesting 
book  "On  the  Great  Highway,"  that  the 
story  of  the  Spanish  war  is  incomplete 
which  overlooks  the  part  that  yellow 
journalism  had  in  bringing  it  on.  He 
tells  us  that  some  time  prior  to  the  com- 
mencement of  hostilities,  a  well-known 
artist  who  had  been  sent  to  Cuba  as  a 
representative  of  one  of  these  papers, 
and  had  there  grown  tired  of  inaction, 
telegraphed  his  chief  that  there  was 
no  prospect  of  war,  and  that  he  wished 
to  come  home.  The  reply  he  received 
was  characteristic  of  the  journalism  he 
represented:  "You  furnish  the  pictures, 
we  will  furnish  the  war."  It  is  charac- 


AND   THE   LAW  z9 

teristic  because  the  new  journalism  aims 
to  direct  rather  than  to  influence,  and 
seeks,  to  an  extent  never  attempted  or 
conceived  by  the  journalism  it  endeav- 
ors so  strenuously  to  supplant,  to  create 
public  sentiment  rather  than  to  mould 
it,  to  make  measures  and  find  men. 

The  larger  number  of  the  readers  of 
the  great  sensational  newspapers  live  at 
or  near  the  place  of  publication,  where 
the  half-dozen  daily  editions  can  be 
placed  in  their  hands  hot  from  the  press. 
The  news  furnished  in  them  is,  for  the 
most  part,  of  distinctively  local  interest. 
In  their  columns  the  horizon  is  narrow 
and  inexpressibly  dingy.  Detailed  nar- 
rations of  sensational  local  happenings, 
preferably  crimes  and  scandals,  are  given 
conspicuous  places,  while  more  impor- 
tant events  occurring  outside  the  city 
limits  are  treated  with  telegraphic  brev- 
ity. These  papers  constitute  beyond 
question  the  greatest  provincializing  in- 
fluence in  metropolitan  life. 


30       [SENSATIONAL  JOURNALISM 

The  particular  local  functions  of  sensa- 
tional journalism  which  bring  it  in  close 
relation  to  the  courts  result  from  its  self- 
imposed  responsibilities  as  detective  and 
punisher  of  crime,  and  as  director  of 
municipal  officials.  So  far  as  the  latter 
are  concerned,  yellow  journalism  appar- 
ently has  a  good  record.  Many  recent 
instances  might,  for  example,  be  cited 
where  these  newspapers,  acting  under 
the  names  of  "  dummy  "  plaintiffs,  have 
sought  and  obtained  preliminary  or 
temporary  injunctions  against  threatened 
official  malfeasance,  or  where  they  have 
instituted  legal  proceedings  to  expose 
corrupt  jobbery.  As  to  the  actual  re- 
sults thus  accomplished,  other  than  the 
publicity  obtained,  the  general  public 
is  not  in  a  position  to  judge.  Tempo- 
rary injunctions  granted  merely  until 
the  merits  of  the  case  can  be  heard  and 
determined  are  of  no  particular  value  if, 
when  the  trial  day  comes,  the  newspaper 
plaintiff  fails  to  appear,  the  case  is  dis- 


AND    THE   LAW  31 

missed,  and  the  temporary  injunction 
vacated.  On  such  occasions,  and  they 
are  more  frequent  than  the  general  pub- 
lic is  aware,  the  newspaper  takes  little 
pains  to  inform  its  readers  of  the  final 
results  of  the  matter  over  which  it  made 
such  hue  and  cry  months  before. 

But  however  fair-minded  persons  may 
differ  as  to  the  results  actually  obtained 
by  these  newspaper  law  enterprises  in 
the  civil  courts,  there  is  less  room  for 
difference  of  opinion  as  to  the  methods 
with  which  they  are  conducted.  Almost 
invariably  they  are  so  managed  as  to 
convey  to  the  minds  of  their  readers 
the  idea  that  the  decision  rendered,  if 
a  favorable  one,  has  not  come  as  the 
result  of  a  just  rule  of  law  laid  down  by  a 
wise  and  fair-minded  judge,  but  has  been 
obtained  rather  in  spite  of  both  law  and 
judge,  and  wholly  because  a  newspaper 
of  enormous  circulation,  championing 
the  cause  of  the  people,  had  wrested  the 
law  to  its  clamorous  authority.  The 


32        SENSATIONAL  JOURNALISM 

attitude  of  mind  thus  created  is  well 
exemplified  in  a  remark  made  to  me  by 
a  business  man  of  more  than  ordinary 
intelligence,  in  discussing  an  injunction 
granted  in  one  of  these  newspaper  suits 
arising  out  of  a  water  scandal :  "  Why, 
of  course  Judge  granted  the  in- 
junction. Everybody  knew  he  would. 
There  is  not  a  judge  on  the  bench  who 
would  have  the  nerve  to  decide  the  other 
way  with  all  the  row  the  newspapers 
have  made  about  it.  He  knows  where 
his  bread  is  buttered." 

One  of  the  great  features  of  counting- 
house  journalism  is  its  real  or  supposed 
ability  in  the  detection  and  punish- 
ment of  crime.  Whether  this  field  is  a 
legitimate  one  for  a  newspaper  to  enter, 
need  not  be  discussed  here.  It  goes 
without  saying  that  an  interesting  mur- 
der mystery  sells  many  papers,  and  if, 
as  a  result  of  skillful  detective  work,  the 
guilty  party  finally  is  brought  to  the 
gallows  or  the  electric  chair,  it  is  a  tri- 


AND   THE   LAW  33 

umph  for  the  paper  whose  reporters  are 
the  sleuths.  While  such  efforts  when 
crowned  with  success  are  the  source 
probably  of  much  credit  and  revenue, 
there  are  various  disagreeable  possibili- 
ties connected  with  failure  which  the  as- 
tute managers  of  these  papers  can  never 
afford  to  overlook.  While  verdicts  in 
libel  suits  in  this  country  compared  with 
those  in  England  are  generally  small, 
and  the  libel  law  itself  is  filled  with 
curious  and  antiquated  technicalities  by 
which  verdicts  may  be  avoided  or 
reversed,  nevertheless  there  is  always 
the  possibility  that  an  innocent  victim 
of  newspaper  prosecution  will  turn 
the  tables  and  draw  smart-money  from 
the  enterprising  journal's  coffers.  The 
acquittal  of  the  person  who  has  been 
thrust  into  jeopardy  by  newspaper  de- 
tectives is  obviously  a  serious  matter  for 
the  paper.  On  the  other  hand,  there  are 
no  important  consequences  from  convic- 
tion except  of  course  to  the  person  con- 


34        SENSATIONAL  JOURNALISM 

demned.  Is  it  to  be  expected  that  the 
newspaper  under  such  circumstances  will 
preserve  a  disinterested  and  impartial 
tone  in  its  news  columns  while  the  man 
in  the  dock  is  fighting  for  his  life  before 
the  judge  and  jury?  Is  it  remarkable 
that  during  the  course  of  such  a  trial 
the  newspaper  should  fill  its  pages  with 
ghastly  cartoons  of  the  defendant,  with 
murder  drawn  in  every  line  of  his  face, 
or  that  it  should  by  its  reports  of  the 
trial  itself  seek  to  impress  its  readers 
with  his  guilt  before  it  be  proved  ac- 
cording to  law  *?  that  it  should  send  its 
reporters  exploring  for  new  witnesses 
for  the  prosecution,  and  should  publish 
in  advance  of  their  appearance  on  the 
witness  stand  the  substance  of  the  dam- 
aging testimony  it  is  claimed  they  will 
give *?  that  it  should  go  even  farther, 
and  (as  was  recently  shown  in  the  course 
of  a  great  poisoning  case  in  New  York 
city,  the  history  of  which  forms  a  strik- 
ing commentary  on  all  these  abuses) 


AND    THE   LAW  35 

actually  pay  large  sums  of  money  to 
induce  persons  to  make  affidavits  incrim- 
inating the  defendant  on  trial  ?  Unfor- 
tunately, too  often  these  efforts  receive 
aid  from  prosecuting  officers,  whose  sense 
of  public  duty  is  impaired  or  destroyed 
by  the  itch  for  reputation  and  a  cheap 
and  tawdry  type  of  forensic  triumph. 
Despicable  indeed  is  the  district  attor- 
ney who  grants  interviews  to  newspaper 
reporters  during  the  progress  of  a  crimi- 
nal trial,  and  who  makes  daily  state- 
ments to  them  of  what  he  intends  to 
prove  on  the  morrow — unless  prevented 
by  the  law  as  expounded  by  the  trial 
judge.  A  careful  study  of  the  progress 
of  more  than  one  great  criminal  trial  in 
New  York  city  would  show  how  ille- 
gal and  improper  matter  prejudicial  to 
the  person  accused  of  crime  has  been 
ruled  out  by  the  trial  court  only  to  have 
the  precise  information  spread  about  in 
thousands  upon  thousands  of  copies  of 
sensational  newspapers,  with  a  reason- 


36        SENSATIONAL  JOURNALISM 

able  certainty  of  their  scare  headlines, 
at  least,  being  read  by  some  of  the  jury. 
The  pernicious  influence  of  these  jour- 
nals on  the  courts  of  justice  in  criminal 
trials  (and  not  merely  in  the  compara- 
tively small  number  in  which  they  are 
themselves  the  instigators  of  the  crimi- 
nal proceedings)  is  that  they  often  make 
fair  play  an  impossibility.  The  days 
and  weeks  that  now  are  not  infrequently 
given  to  selecting  jurors  in  important 
criminal  cases  are  spent  in  large  measure 
by  counsel  in  examining  talesmen  in 
an  endeavor  to  find,  if  possible,  twelve 
men  in  whose  minds  the  accused  has 
not  been  already  "  tried  by  newspaper  " 
and  condemned  or  acquitted.  When  the 
public  feeling  in  a  community  is  such 
that  it  will  be  impossible  for  a  party 
to  an  action  to  obtain  an  unprejudiced 
jury,  a  change  of  venue  is  allowed  to 
some  other  county  where  the  state  of 
the  public  mind  is  more  judicial.  It  is 
a  significant  fact  that  nearly  all  applica- 


AND   THE   LAW  37 

tions  in  New  York  city  for  such  change 
in  the  place  of  trial  have  been  for  many 
years  based  mainly  upon  complaints 
against  the  inflammatory  zeal  of  the  sen- 
sational press. 

The  courts  in  Massachusetts  (where 
judges  are  not  elected  by  the  people,  but 
are  appointed  by  the  governor)  have 
been  very  prompt  in  dealing  in  a  most 
wholesome  and  summary  way  with  edi- 
tors of  papers  publishing  matter  calcu- 
lated to  affect  improperly  the  fairness  of 
jury  trials.  Whether  it  be  from  better 
principles  or  an  inspiring  fear  of  jail, 
the  course  of  public  justice  in  that  State 
receives  little  interference  from  unwar- 
ranted newspaper  stories.  Some  of  the 
cases  in  which  summary  punishment 
has  been  meted  out  from  the  bench  to 
Massachusetts  editors  will  impress  New 
York  readers  rather  curiously.  For  ex- 
ample, just  before  the  trial  of  a  case 
involving  the  amount  of  compensation 
the  owner  of  land  should  receive  for  his 


3  8        SENSATIONAL  JOURNALISM 

land  taken  for  a  public  purpose,  a  newspa- 
per in  Worcester  informed  its  readers 
that  "the  town  offered  Loring  (the  plain- 
tiff) $80  at  the  time  of  the  taking,  but 
he  demanded  $250,  and  not  getting  it, 
went  to  law."  Another  paper  published 
substantially  the  same  statement,  and 
both  were  summarily  punished  by  fine, 
the  court  holding  that  these  articles  were 
calculated  to  obstruct  the  course  of  jus- 
tice, and  that  they  constituted  contempt 
of  court.  During  the  trial  of  a  criminal 
prosecution  in  Boston,  a  few  years  ago, 
against  a  railway  engineer  for  man- 
slaughter in  wrecking  his  train,  the  edi- 
tor of  the  Boston  "  Traveler  "  intimated 
editorially  that  the  railway  company  was 
trying  to  put  the  blame  on  the  engineer 
as  a  scapegoat,  and  that  the  result  of 
the  trial  probably  would  be  in  his  favor. 
The  editor  was  sentenced  to  jail  for 
this  publication.  The  foregoing  are  un- 
doubtedly extreme  cases,  and  are  chosen 
simply  to  show  the  extent  to  which  some 


AND   THE   LAW  39 

American  courts  will  go  in  punishing 
newspaper  contempts.  All  of  these  de- 
cisions were  taken  on  appeal  to  the  high- 
est court  of  the  State  and  were  there 
affirmed.  The  California  courts  have 
been  equally  vigorous  of  recent  years,  in 
several  cases,  notably  in  connection  with 
publications  made  during  the  celebrated 
Durant  murder  trial  in  San  Francisco. 
The  English  courts  are,  if  anything,  even 
more  severe  in  this  class  of  cases,  a 
recent  decision  of  the  Court  of  King's 
Bench  being  a  noteworthy  illustration. 
During  the  course  of  the  trial  of  two  per- 
sons for  felony,  the  "  special  crime  inves- 
tigator" of  the  Bristol  "Weekly  Dis- 
patch" sent  to  his  paper  reports,  couched 
in  a  fervid  and  sensational  form,  contain- 
ing a  number  of  statements  relating  to 
matters  as  to  which  evidence  would 
not  have  been  admissible  in  any  event 
against  the  defendants  upon  their  trial, 
and  reflecting  severely  on  their  characters. 
Both  of  the  defendants  referred  to  were 


4o        SENSATIONAL  JOURNALISM 

convicted  of  the  crime  for  which  they 
were  indicted,  and  sentenced  to  long 
terms  of  imprisonment.  Shortly  after 
their  conviction  and  sentence,  the  editor 
of  the  "  Dispatch  "  and  this  special  crime 
investigator  were  prosecuted  criminally 
for  perverting  the  course  of  justice,  and 
each  of  them  was  sentenced  to  six  weeks 
in  prison.  Lord  Alverstone,  who  ren- 
dered the  opinion  on  the  appeal  taken 
by  the  editor  and  reporter,  in  affirming 
the  judgment  of  conviction,  expresses 
himself  in  language  well  worth  repeating. 
He  says  :  '  — 

"A  person  accused  of  crime  in  this 
country  can  properly  be  convicted  in 
a  court  of  justice  only  upon  evidence 
which  is  legally  admissible,  and  which  is 
adduced  at  his  trial  in  legal  form  and 
shape.  Though  the  accused  be  really 
guilty  of  the  offense  charged  against  him, 
the  due  course  of  law  and  justice  is  never- 
theless perverted  and  obstructed  if  those 
1  i  K.  B.  (1902)  77. 


AND   THE   LAW  41 

who  have  to  try  him  are  induced  to  ap- 
proach the  question  of  his  guilt  or  inno- 
cence with  minds  into  which  prejudice 
has  been  instilled  by  published  asser- 
tions of  his  guilt,  or  imputations  against 
his  life  and  character  to  which  the  laws 
of  the  land  refuse  admission  as  evidence." 
In  the  State  of  New  York  the  courts 
have  permitted  themselves  to  be  deprived 
of  the  greater  portion  of  the  power  which 
the  courts  of  Massachusetts,  in  common 
with  those  of  most  of  the  States,  exercise 
in  punishing  for  contempt  the  authors 
of  newspaper  publications  prejudicial  to 
fair  trials.  Some  twenty-five  years  ago 
the  state  legislature  passed  an  act  defining 
and  limiting  the  cases  in  which  summary 
punishment  for  contempt  should  be  in- 
flicted by  the  courts.  Similar  legislation 
has  been  attempted  in  other  States,  only 
to  be  declared  unconstitutional  by  the 
courts  themselves,  holding  that  the  power 
to  punish  is  inherent  in  the  judiciary 
independent  of  legislative  authority,  and 


42        SENSATIONAL  JOURNALISM 

that,  as  the  Supreme  Court  of  Ohio  says, 
"  The  power  the  legislature  does  not  give, 
it  cannot  take  away."  But  while  the 
courts  of  Ohio,  Virginia,  Georgia,  Indi- 
ana, Kentucky,  Arkansas,  Colorado,  and 
California  have  thus  resisted  legislative 
encroachment  upon  their  constitutional 
powers,  the  highest  court  of  New  York 
has  submitted  to  having  its  power  to 
protect  its  own  usefulness  and  dignity 
shorn  and  curtailed  by  the  legislature. 
The  result  is  that  while  by  legislative 
permission  they  may  punish  the  editor  or 
proprietor  of  a  paper  for  contempt,  it  can 
be  only  when  the  offense  consists  in  pub- 
lishing "  a  false  or  grossly  inaccurate  re- 
port of  a  judicial  proceeding."  The  insuf- 
ficiency of  such  a  power  is  apparent  when 
one  considers  that  the  greater  number 
of  the  cartoons  and  comments  contained 
in  publications  fairly  complained  of  as 
prejudicing  individual  legal  rights  are 
not,  and  do  not  pretend  to  be,  "reports  " 
of  judicial  proceedings  at  all,  but  relate 


AND   THE   LAW  43 

entirely  to  matters  "  outside  the  record." 
If  the  acts  done,  for  example,  in  any  of 
the  cases  cited  as  illustrations  above,  had 
been  done  under  similar  circumstances  in 
New  York,  the  New  York  courts  would 
have  been  powerless  to  take  any  pro- 
ceeding whatever  in  the  nature  of  con- 
tempt, against  the  respective  offenders. 
The  result  is  that  in  the  State  which  suf- 
fers most  from  the  gross  and  unbridled 
license  of  a  sensational  and  lawless  press 
the  courts  possess  the  least  power  to  re- 
press and  restrain  its  excesses.  A  change 
of  law  which  shall  give  New  York  courts 
power  to  deal  summarily  with  trial  by 
newspaper  is  imperatively  needed. 

To  the  two  examples  which  have  just 
been  given  of  the  direct  influence  which 
counting-house  journalism  seeks  to  exert 
upon  judges  and  jurors  might  be  added 
others  of  perhaps  equal  importance.  But 
all  improper  influences  upon  legislators 
or  other  public  officials,  or  upon  judges 
or  jurors,  which  these  papers  may  exer- 


,-.    -, 


44        SENSATIONAL  JOURNALISM 

cise  or  attempt  to  exercise,  are  as  naught 
in  comparison  with  their  systematic  and 
constant  efforts  to  instill  into  the  minds 
of  the  ignorant  and  poor,  who  consti- 
tute the  greater  part  of  their  readers,  the 
impression  that  justice  is  not  blind  but 
bought ;  that  the  great  corporations  own 
the  judges,  particularly  those  of  the  Fed- 
eral courts,  body  and  soul ;  that  Ameri- 
can institutions  are  rotten  to  the  core,  and 
that  legislative  halls  and  courts  of  justice 
exist  as  instruments  of  oppression  and  to 
preserve  the  rights  of  property  by  deny- 
ing or  destroying  the  rights  of  man.  No 
greater  injury  can  be  done  to  the  working 
people  than  to  create  in  their  minds  this 
false  and  groundless  suspicion  concern- 
ing the  integrity  of  the  judiciary.  In  a 
country  whose  political  existence,  in  the 
ultimate  analysis,  depends  so  largely  upon 
the  intelligence  and  honesty  of  its  judges, 
the  general  welfare  requires  not  merely 
that  judges  should  be  men  of  integrity, 
but  that  the  people  should  believe  them 


AND   THE   LAW  45 

to  be  so.  It  is  this  confidence  which 
counting-house  journalism  has  set  itself 
deliberately  at  undermining.  It  is  not  so 
important  that  the  people  should  believe 
in  the  wisdom  of  their  judges.  The  lib- 
erty of  criticism  is  not  confined  to  the  bar 
and  what  Judge  Grover  used  to  call "  the 
lawyer's  inalienable  privilege  of  damning 
the  adverse  judge  —  out  of  court."  There 
is  no  divinity  which  hedges  a  judge.  His 
opinions  and  his  personality  are  proper 
subjects  for  criticism,  but  the  charge  of 
corruption  should  not  be  made  recklessly 
and  without  good  cause.  It  is  noticeable 
that  this  charge  of  corruption  which  yel- 
low journalism  makes  against  the  courts 
is  almost  invariably  a  wholesale  charge, 
rarely  accompanied  by  any  specific  accu- 
sation against  any  definite  official.  These 
general  charges  are  more  frequently  ex- 
pressed by  cartoon  than  by  comment. 
The  big-chested  Carthaginian  labeled 
"The  Trusts,"  holding  a  squirming  Fed- 
eral judge  in  his  fist,  is  a  cartoon  which 


46        SENSATIONAL  JOURNALISM 

in  one  form  or  another  appears  in  some 
of  these  papers  whenever  an  injunction  is 
granted  in  a  labor  dispute  at  the  instance 
of  some  great  corporation.  Justice  hold- 
ing her  scales  with  a  workingman  un- 
evenly balanced  by  an  immense  bag  of 
gold ;  a  human  basilisk  with  dollar  marks 
on  his  clothes,  a  judge  sticking  out 
of  his  pocket,  and  a  workingman  under 
his  foot;  Justice  holding  her  scales  in 
one  hand,  with  the  other  one  conven- 
iently open  to  receive  the  bribe  that  is 
being  placed  in  it,  —  these  and  many 
other  cartoons  of  similar  character  and 
meaning  are  familiar  to  all  readers  of 
sensational  newspapers.  If  their  readers 
believe  the  cartoons,  what  faith  can 
they  have  left  in  American  institutions  ? 
What  alternative  is  offered  but  anarchy, 
if  wealth  has  poisoned  the  fountains  of 
justice  ;  if  reason  is  powerless  and  money 
omnipotent  ?  If  the  judges  are  corrupt, 
the  political  heavens  are  empty. 

There  is  no  occasion  to  defend  the 


AND   THE   LAW  47 

American  judiciary  from  charges  of 
wholesale  corruption.  They  might  be 
passed  over  in  silence  if  they  were  ad- 
dressed merely  to  the  educated  and  in- 
telligent, or  to  those  familiar  by  personal 
contact  with  the  actual  operations  of  the 
courts.  That  there  are  many  judicial  de- 
cisions rendered  which  are  unsound  in 
their  reasoning  may  readily  be  granted. 
It  may  be  admitted  that  some  of  the 
Federal  judges  are  men  of  very  narrow 
gauge,  and  that,  during  the  recent  coal 
strike,  for  example,  in  granting  sweep- 
ing, wholesale  injunctions  against  strikers 
they  have  accompanied  their  decrees  at 
times  with  opinions  so  unjudicial,  so  filled 
with  mediaeval  prejudice  and  rancor 
against  legitimate  organizations  of  work- 
ing people,  as  to  rouse  the  indignation  of 
right-minded  men.  But  prejudice  and 
corruption  are  totally  dissimilar.  There 
is  always  hope  that  an  honest  though 
prejudiced  man  may  in  time  see  reason. 
This  hope  inspires  patience  and  forbear- 


48        SENSATIONAL  JOURNALISM 

ance.  Justice  can  wait  with  confidence 
while  the  prejudiced  or  ultra-conservative 
judge  grows  wise,  and  the  principles  of 
law  are  strongest  and  surest  when  they 
have  been  established  by  surmounting 
the  prejudice  and  doubts  of  many  timid 
and  over-conservative  men.  But  justice 
and  human  progress  should  not  and  will 
not  wait  until  the  corrupt  judge  becomes 
honest.  To  thoughtful  men  the  severest 
charge  yet  to  be  made  against  this  new 
journalism  is  not  merely  the  influence  it 
attempts  to  exert,  and  perhaps  does  exert, 
in  particular  cases,  but  that  wantonly  and 
without  just  cause  it  endeavors  to  de- 
stroy in  the  hearts  and  minds  of  thou- 
sands of  newspaper  readers  a  deserved 
confidence  in  the  integrity  of  the  courts 
and  a  patient  faith  in  the  ultimate  tri- 
umph of  justice  by  law. 


Ill 

UNPUNISHED    COMMER- 
CIAL   CRIME 


UNPUNISHED    COMMERCIAL 
CRIME 

PERHAPS  the  most  important  present 
criticism  of  American  criminal  law  is  that 
it  is  content  with  the  performance  of  only 
a  part  of  the  functions  which  the  moral 
welfare  of  the  community  increasingly 
requires  it  to  exercise;  that  it  devotes 
too  much  attention  to  elementary  crimes, 
and  fails  to  recognize  that  the  peculiarly 
dangerous  crimes  of  our  day  are  those 
which  the  changed  conditions  of  modern 
life  have  made  possible,  and  the  detection 
of  which,  for  the  most  part,  is  beyond 
the  scope  of  the  police  system. 

The  principles  of  criminal  law,  as  that 
term  is  used  to-day,  were  formulated  in 
ancient  times  to  meet  the  requirements 
of  an  essentially  agricultural  community, 


52    UNPUNISHED  COMMERCIAL  CRIME 

when  the  citizen  required  protection 
from  crimes  of  violence  rather  than  from 
the  more  modern  crimes  of  craft.  With 
the  development  of  the  police  system 
our  ability  to  cope  with  wrongs  of  vio- 
lence has  steadily  increased.  These  an- 
cient offenses  through  all  ages  have  been 
offenses  primarily  against  the  life  and 
safety  of  the  individual  citizen. 

Crimes  of  the  new  type,  however, 
affect  not  only  the  individual,  but  in  a 
more  immediate  and  special  sense  the 
moral  welfare  of  the  community  itself. 

These  crimes  may  be  described  roughly 
as  crimes  of  fraud,  perpetrated  either  upon 
merchants  or  upon  the  general  public. 
Fraud  in  obtaining  credit  by  falsehood ; 
fraud  in  concealing  and  conveying  pro- 
perty to  avoid  the  just  demands  of 
creditors;  fraud  in  stealing  trademarks 
and  trade-names ;  fraud  in  the  substitu- 
tion, adulteration,  and  misrepresentation 
of  goods;  fraud  in  bribing  "commis- 
sions," and  "  special  rebates ; "  fraud  in 


UNPUNISHED  COMMERCIAL  CRIME    53 

the  promotion,  organization,  inflation, 
management,  and  destruction  of  corpora- 
tions ;  fraud  in  a  hundred  manifestations 
which  daily  are  being  fostered  and  encour- 
aged by  success,  and  rarely  are  deterred 
by  anything  resembling  punishment. 

There  is,  perhaps,  no  occasion  for  pes- 
simism in  this  connection,  but  it  seems 
quite  apparent  that  there  is  in  the  great 
cities  a  constantly  increasing  volume  of 
business  done  which  is  either  fundamen- 
tally fraudulent,  or  which  depends  upon 
fraudulent  means  for  the  large  financial 
success  which  it  often  obtains.  Take,  for 
example,  the  Sunday  edition  of  almost 
any  great  metropolitan  newspaper  and 
study  its  advertising  columns.  Leaving 
out  of  account  the  department  store  an- 
nouncements and  the  want  columns,  con- 
sider what  a  large  part  of  the  remaining 
advertisements  bears  the  mark  of  almost 
obvious  fraud.  During  the  past  few  flush 
years  these  papers  have  been  crowded 
with  alluring  advertisements  of  corpo- 


54   UNPUNISHED  COMMERCIAL  CRIME 

rations  with  enormous  capitalization, 
whose  stock  is  issued,  generally  in  small 
denominations,  to  place  it  within  the 
reach  of  "  small  investors :  "  tempting 
gold  and  copper  mines  for  the  discon- 
tented janitress  and  ambitious  elevator 
man,  corporations  with  new  processes 
and  machinery  to  revolutionize  the  man- 
ufacture of  household  articles  or  necessi- 
ties, corporations  exploiting  startling  in- 
ventions calculated,  on  paper,  to  reverse 
the  ways  of  commerce.  An  investigation 
would  probably  show  that  a  majority  of 
these  companies  are  created  solely  for  the 
purpose  of  selling  stock,  and  without  the 
slightest  intention  on  the  part  of  their 
promoters  or  officers  of  doing  any  legiti- 
mate business  with  the  money  acquired. 
During  the  Klondike  fever,  a  few  years 
ago,  corporations  of  this  kind  were  born 
daily  in  New  Jersey  and  West  Virginia, 
with  enormous  paper  capital,  with  a 
reasonable  sprinkling  of  respectability 
in  their  directorates,  and  with  glittering 


UNPUNISHED  COMMERCIAL  CRIME    55 

prospectuses,  compared  to  which  the 
South  Sea  Bubble  was  both  honest  and 
conservative.  It  may  be  doubted  whether 
of  the  dozens  of  these  highly  advertised 
companies,  organized  to  sell  stock  and 
work  the  gold  mine  of  public  credulity, 
there  is  one  in  active  existence  to-day. 
The  harvest  was  reaped,  and,  their  pur- 
pose being  accomplished,  they  faded 
away  "to  the  nothing  they  set  out  from," 
leaving  no  trace  of  their  existence  except 
beautifully  engraved  certificates  of  stock 
in  the  sewing-machine  drawer  of  the 
seamstress,  or  tucked  away  in  the  family 
Bible  of  the  flat  parlor.  So  accustomed 
have  we  grown  to  these  companies,  with 
their  prospectuses  full  of  fraudulent  mis- 
statements,  over-valuations,  and  over- 
estimates, that  they  long  ago  became  a 
popular  topic  for  our  shiftless  American 
humor.  A  problem  in  America  has  to 
begin  by  being  a  jest,  and  we  laugh  at 
our  troubles  long  before  we  think  of 
doing  anything  to  remove  them. 


56    UNPUNISHED  COMMERCIAL  CRIME 

Study  the  "  Business  Opportunities." 
What  proportion  of  them  are  above  the 
suspicion  of  being  mere  baits  for  catch- 
ing gudgeons  ?  As  for  the  Wall  Street 
advertisements,  the  "  market  letter  peo- 
ple," the  "  pool "  riggers,  the  inevitable 
"clerk  in  the  office  of  a  large  corpora- 
tion who  will  confidentially  sell  informa- 
tion of  a  certain  movement  in  its  stock," 
the  turf-guide  companies  with  their  daily 
tips,  they  require  no  comment.  So  far 
as  drugs  and  medicines  are  concerned, 
we  are  so  accustomed  to  quack  nos- 
trums that  we  consider  them  with  the 
utmost  toleration,  and  accept  good-na- 
turedly the  maxim  of  one  of  the  most 
successful  of  modern  "  nerve  invigora- 
tors,"  that  "  the  value  of  an  advertised 
medicine  depends  on  what  you  put  on 
the  bottle  rather  than  on  what  you  put 
in  it." 

This  country  is  notorious  for  its  gen- 
eral indifference  to  adulteration  and  sub- 
stitution of  foods  and  drugs.  Even  when 


UNPUNISHED  COMMERCIAL  CRIME   57 

the  article  is  found  to  be  highly  danger- 
ous to  health,  actual  punishment  of  its 
promoters  is  exceedingly  rare.  An  amus- 
ing recognition  of  America  as  the  natural 
home  of  food  frauds  was  given  recently 
in  Germany,  where  the  harsh  govern- 
ment had  pounced  upon  the  prosperous 
manufacturers  of  a  so-called  Rhine  wine 
which  contained  some  rather  remarkable 
adulterations.  The  manufacturers  made 
a  strong  though  ultimately  unsuccessful 
plea  to  be  left  in  peace.  They  main- 
tained that  they  had  never  sold  a  bot- 
tle of  their  decoction  in  Germany,  but 
were  engaged  solely  in  trade  with  the 
United  States ;  that  their  business  was 
very  large,  and  afforded  employment  to 
many  German  workmen;  and  that  an 
attack  made  upon  their  business  would 
be  an  attack  upon  many  other  business 
houses  likewise  employing  German  work- 
men, and  likewise  engaged  exclusively  in 
export  business  to  the  United  States. 
A  lengthy  consideration  of  common 


58    UNPUNISHED  COMMERCIAL  CRIME 

forms  of  commercial  fraud  daily  prac- 
ticed is  unnecessary,  and  would  extend 
this  paper  beyond  reasonable  limits.  The 
subject  of  "  business  graft  "  alone  would 
afford  a  topic  in  itself,  - —  that  form  of 
criminal  conspiracy  which  finds  daily 
illustration  through  the  whole  length  and 
breadth  of  business  life,  from  the  cook, 
whose  beer  bottles  are  charged  up  by  the 
grocer,  to  the  purchasing  agent  of  the 
railroad,  who  grows  rich  by  secret  com- 
missions on  everything  which,  through 
him,  his  company  buys.  The  point  is 
not  that  these  frauds  exist,  for  every  one 
knows  that  they  exist  and  flourish  luxu- 
riantly. The  significant  thing  is  that  in 
this  country  we  do  not  think  of  these 
modern  forms  of  criminal  business  as  pro- 
per subjects  for  treatment  by  criminal 
law,  and  often  we  do  not  consider  them 
as  crimes  at  all. 

Fraud  accomplished  by  ancient  meth- 
ods, larceny  of  the  simple  and  obvious 
type  by  the  common  criminal,  we  meet 


UNPUNISHED  COMMERCIAL  CRIME    59 

readily  enough,  but  on  crime  of  a  more 
intellectual  kind,  particularly  crime  in 
the  business  methods  and  expedients  of 
highly  successful  financiers  and  business 
men,  we  hesitate  to  put  the  mark  of  pub- 
lic disapproval.  We  have  not  yet  real- 
ized the  peculiarly  corrupting  influence 
of  these  offenses.  In  medicine  we  long 
ago  learned  that  among  bodily  ailments 
smallpox  and  diphtheria  were  highly 
dangerous  to  the  community,  and  with 
these  diseases  our  health  boards  deal  with 
commendable  promptness,  because  they 
are  recognized  not  only  as  serious  dis- 
eases, but  as  highly  contagious  ones. 
Should  not  the  criminal  courts  perform 
the  functions  of  health  boards  in  preserv- 
ing the  community  from  moral  epidem- 
ics ?  In  dealing  with  crime,  should  not 
they  deal  with  greater  vigor  with  its 
more  contagious  form  *?  Which,  for  ex- 
ample, is  really  the  greater  enemy  of 
American  society,  the  Mulberry  Bend 
Italian  who  in  a  fit  of  jealous  frenzy  mur- 


60   UNPUNISHED  COMMERCIAL  CRIME 

ders  his  wife,  or  the  promoter  of  a  heavily 
watered  corporation  who,  by  a  fraudu- 
lent prospectus,  induces  the  foolish  in- 
nocent to  lose  thousands  upon  thousands 
of  honestly  earned  dollars  ?  At  the  crime 
of  the  Italian  the  moral  sense  of  the 
community  is  shocked.  Even  his  poor 
neighbors  in  his  own  tenement  regard 
his  offense  with  horror.  The  sphere  of 
influence  of  such  a  murder  is  compara- 
tively small,  and  the  whole  machinery 
of  the  law  is  immediately  turned  upon 
the  criminal.  If  he  flies,  the  police  of 
the  whole  country  aid  in  the  search  for 
him.  He  is  quickly  captured,  quickly 
tried,  and  lifelong  imprisonment  is  the 
penalty.  To  the  promoter  whose  success- 
ful operations  enable  him  to  live  a  life  of 
ostentatious  luxury,  and  with  whom  rep- 
utable men  are  apparently  not  unwilling 
to  associate,  the  criminal  law  ordinarily 
has  nothing  to  say.  As  for  the  young  men 
who  see  him  living  in  elegance,  with  the 
profusion  of  worldly  goods  his  methods 


UNPUNISHED  COMMERCIAL  CRIME   61 

have  gained  for  him,  who  enjoy  the  hos- 
pitality of  his  automobile  or  his  yacht, 
is  it  surprising  that  they  should  learn  to 
think  that  there  is  a  better  way  of  getting 
money  than  by  earning  it,  or  that  they  also 
should  become  earnest  students  of  that 
all  too  prevalent  form  of  business  success 
whose  triumph  consists  in  making  plenty 
of  money  and  keeping  out  of  jail  ? 

Another  phase  of  the  influence  of  the 
fraudulent  promoter  is  in  the  effect  of  his 
efforts  upon  legitimate  enterprises.  Com- 
paratively few  of  the  investors  who  lost 
money  in  his  "  operation  "  because  they 
thought  his  promising  scheme  afforded 
a  legitimate  means  of  investment  for 
them  could  again  be  induced  by  any 
amount  of  persuasion  to  embark  in  an- 
other corporate  venture,  however  honest 
or  highly  commended. 

When  shall  we  begin  to  consider  the 
real  importance  of  dealing  vigorously 
through  the  criminal  courts  with  the 
modem  business  vampire  ?  By  what  pro- 


6z    UNPUNISHED  COMMERCIAL  CRIME 

cess  of  reasoning  can  we  make  a  moral 
distinction  between  the  larceny  of  the 
despised  green-goods  or  gold-brick  swin- 
dler and  the  equally  real  larceny  ac- 
complished, for  example,  by  the  rich 
and  quasi-respectable  promoters  of  the 
United  States  Ship-Building  Company, 
that  bubble  of  fraud  concerning  which  the 
public  press  has  said  so  much  recently. 
The  trustee  who  hazards  the  funds  of  his 
trust  estate  in  Wall  Street  gambling,  and 
loses,  speedily  learns  to  his  sorrow  that  his 
offense  is  embezzlement,  and  his  punish- 
ment severe.  How  do  we  distinguish 
between  the  conduct  which  places  him 
behind  the  bars  of  a  prison  and  that,  for 
example,  of  the  president  and  directors 
of  the  trust  company  so  closely  associ- 
ated with  the  shipbuilding  swindle,  upon 
which  the  financial  report  of  the  New 
York  state  bank  examiner  has  recently 
been  made  public  ?  That  report  shows 
that  these  directors  made  illegal  and  prac- 
tically unsecured  loans  of  enormous 


UNPUNISHED  COMMERCIAL  CRIME   63 

amounts,  and  permitted  their  president 
to  use  his  official  position,  and  the  money 
of  stockholders  and  depositors,  to  gamble 
in  floating  a  so-called  trust  of  the  most 
flagrantly  fraudulent  character.  Illegal 
loans  to  this  president  were  made  to  ten 
times  the  amount  which  was  authorized 
by  the  banking  law,  and  the  trust  com- 
pany preserved  its  solvency  only  by 
reducing  its  capital  fifty  per  cent.  "  Its 
losses  wiped  out  its  entire  surplus  and 
necessitated  the  sacrifice  by  stockhold- 
ers of  over  one  half  their  holdings.  Over 
a  million  dollars  was  charged  to  profit 
and  loss."  The  state  bank  examiner, 
from  whose  report  the  last  sentence  is 
quoted,  closes  that  report  with  a  series  of 
recommendations  for  new  bank  legisla- 
tion to  prevent  acts  which  he  says  "fla- 
grantly transgress  the  law."  It  is  signifi- 
cant, however,  that,  notwithstanding  this 
series  of  recommendations  as  to  needed 
banking  law,  there  is  no  suggestion  that 
the  existing  criminal  law  be  in  any  wise 


64   UNPUNISHED  COMMERCIAL  CRIME 

put  in  motion  to  punish  such  offenses 
by  such  highly  respectable  offenders,  nor 
does  the  examiner  comment  upon  the  in- 
adequacy of  that  law  for  such  a  purpose, 
nor  advise  any  remedial  amendments. 

Is  it  not  more  important,  in  the  tem- 
per of  these  times,  that  the  community 
should  be  both  able  and  willing  actually 
to  punish  as  crimes  offenses  of  which 
these  are  but  types,  than  that  half  a  dozen 
slum  murderers  should  undergo  sen- 
tence ?  We  suffer  from  no  general  temp- 
ition  to  commit  murder,  but  far  too 
>  many  of  us,  and  not  merely  the  poor  and 
f  \  Veedy  ones  either,  do  suffer  from  temp- 
tations to  make  too  much  money  in 
quick  and  deviousways.  The  failure  of 
the  criminal  courts  to  reach  these  types 
of  offenses  and  offenders  can  but  be  far- 
reaching  in  the  evil  consequences  which 
inevitably  follow  from  it,  in  undermining 
the  national  moral  sense  which  the  crimi- 
nal courts  were  created  to  strengthen  and 
support. 


UNPUNISHED  COMMERCIAL  CRIME    65 

The  facts  brought  out  by  the  investi- 
gation of  the  management  of  several  of 
the  large  insurance  companies  recently 
made  by  a  committee  of  the  New  York 
legislature  are  too  fresh  in  the  public 
mind  to  require  repetition  here.  What, 
if  any,  criminal  prosecution  will  result 
from  the  exposure  of  official  malfeasance 
made  through  the  investigation,  it  is  im- 
possible to  predict.  No  indictments  have 
as  yet  been  found.  The  public,  which 
through  the  press  is  now  clamoring  for 
indictments  and  for  the  punishment  by 
law  of  the  officials  whose  personal  repu- 
tations for  integrity  have  collapsed  under 
the  investigation,  is  not  in  a  position  to 
note  the  significant  absence  of  any  pro- 
vision, through  which  the  more  serious 
offenses  of  these  officers  can  be  reached, 
in  the  chapter  of  the  Penal  Code  of  New 
York  relating  to  misconduct  and  fraud 
in  the  management  of  insurance  corpo- 
rations. Whether  there  are  other  provi- 
sions of  the  Penal  Code  by  which  the 


66   UNPUNISHED  COMMERCIAL  CRIME 

lawless  actions  of  these  trustees  can  be 
punished  remains  for  the  ingenuity  of 
the  public  prosecutor  to  discover.  Crimi- 
nal law  in  this  country  has  not  been 
written  with  a  view  to  meeting  all  the 
varied  necessities  of  the  high  financier, 
and  the  work  of  this  investigating  com- 
mittee will  not  be  complete  unless  there 
follows  its  report  a  long-needed  exten- 
sion of  that  law  to  cover  corrupt  prac- 
tices in  the  organization  and  manage- 
ment of  corporations  which  are  now 
untouched  by  it.  There  is  no  reason  for 
assuming  that  insurance  companies  are  \ 
the  only  great  corporations  whose  officers  ] 
have  curious  notions  of  business  integ- 
rity, or  that  their  directors  alone  are  blind 
or  indifferent  to  their  duties. 

The  insurance  investigation  gives  a  J 
long-needed  prominence  to  one  evil  in 
particular  by  which  safety  is  afforded  to 
essentially  criminal  operations  of  "  finan- 
ciers "  in  control  of  large  corporations. 
The  attention  of  the  public  has  been 


UNPUNISHED  COMMERCIAL  CRIME   67 

called  to  the  fact  that  for  years  the  policy- 
holders  in  these  large  insurance  compa- 
nies, by  a  section  of  the  state  Insurance 
Law,  have  been  practically  denied  access 
to  the  courts  either  to  protect  their  own 
rights  or  to  protect  their  companies  from 
the  plundering,  extravagance,  and  stock- 
jobbing which  this  investigation  has  dis- 
closed. Legal  responsibility  is  the  best 
tonic  for  moral  responsibility  that  man 
can  devise.  It  is  a  dangerous  thing  for 
any  corporation  officer,  even  of  the  most 
inveterate  respectability,  to  find  himself 
in  a  favored  class  where  his  actions  are 
beyond  the  reach  of  judicial  scrutiny. 
Irresponsibility  is  the  mother  of  corrup- 
tion. Thieves  perform  their  depredations 
preferably  in  the  dark,  and  this  statutory 
darkness,  created  by  law  for  the  protec- 
tion of  conscienceless  freebooters  in  trust 
funds,  should  no  longer  continue. 

This  particular  statute  prohibiting  suits 
by  policy-holders  against  insurance  com- 
panies, except  with  the  consent  of  the 


68    UNPUNISHED  COMMERCIAL  CRIME 

Commissioner  of  Insurance,  is  interesting, 
not  only  because  of  the  close  relation  of 
this  crime-breeding  statute  to  the  scan- 
dals of  these  companies,  but  also  because 
it  is  an  extreme  illustration  of  the  strong 
tendency  of  the  law  to  over-protect  from 
interference  or  accountability  majority 
interests  and  the  officers  representing 
such  interests  in  corporations  generally. 
The  growing  demand  for  greater  pub- 
licity in  corporation  matters  has  for  its 
basis  the  conviction,  deepened  by  bitter 
experience,  that  corporation  laws  which 
permit  the  exercise  of  wide  powers  by 
corporate  officers  and  directors  are  dan- 
gerous unless  offset  by  guaranteeing  to 
stockholders  the  right  to  scrutinize  their 
actions  and  prevent  or  punish  wrong- 
doing. Power  practically  irresponsible 
and  unbridled  is  sure  to  create  extraordi- 
nary temptations.  Macaulay  tells  us  of 
Lord  Clive's  bold  retort  to  Parliament 
when  called  to  account  for  his  plunder- 
ing in  India.  He  described  in  vivid 


UNPUNISHED  COMMERCIAL  CRIME   69 

language  the  situation  in  which  his  vic- 
tory placed  him,  —  an  opulent  city,  afraid 
of  being  given  up  to  plunder,  wealthy 
bankers  bidding  against  each  other  for 
his  smiles,  vaults  piled  with  gold  and 
jewels  open  to  him  alone.  "By  God, 
Mr.  Chairman,"  he  exclaimed,  "  at  this 
moment  I  stand  astonished  at  my  own 
moderation ! " 

The  conditions  which  tend  to  make 
sordid  and  unromantic  Lord  Clives  in 
the  financial  world  exist  where  laws  per- 
mit directors  to  decide  what,  if  any, 
inspection  of  the  records  of  a  com- 
pany shall  be  afforded  to  its  stockholders, 
or  which  place  statutory  restrictions  on 
stockholders'  suits  in  the  courts. 

Even  when  such  statutory  restrictions 
do  not  exist,  a  wilderness  of  technicalities 
has  to  be  passed  through  before  a  stock- 
holder can  succeed  in  obtaining  for  his 
company  redress  in  the  courts  for  wrongs 
done  to  it  by  its  officers.  An  additional 
discouragement  against  such  suits  is  well 


70   UNPUNISHED  COMMERCIAL  CRIME 

illustrated  by  a  recent  case  in  New  York. 
A  minority  stockholder  of  an  over-capi- 
talized corporation  compelled  by  legal 
proceedings  a  highly  respectable  Board 
of  Directors  to  pay  personally  into  the 
treasury  of  the  company  $685,000,  the 
amount  which  had  been  unlawfully  paid 
out  by  them  in  dividends  which  had 
never  been  earned.  These  dividends, 
whereby  an  entirely  fictitious  value  had 
been  given  to  the  stock  itself,  had  been 
declared  from  the  money  paid  in  by  stock- 
buyers.  The  declaration  of  such  divi- 
dends is  a  crime.  After  this  very  valuable 
service  had  been  rendered  to  this  com- 
pany, resulting  in  the  return  to  it  of  this 
very  large  sum,  the  attorneys  for  the 
stockholder  sought  to  have  their  fee  paid 
from  the  money  thus  recovered.  It  would 
certainly  seem  as  a  matter  of  elementary 
justice,  as  well  as  of  good  public  policy, 
that  a  stockholder  who  had  performed 
such  signal  service  as  this  to  his  company 
should  not  be  compelled  to  bear  person- 


UNPUNISHED  COMMERCIAL  CRIME   71 

ally  the  presumably  large  legal  expense 
which  his  action  had  entailed,  and  that 
a  service  rendered,  not  solely  for  the  per- 
sonal benefit  of  this  single  stockholder, 
but  for  that  of  all  stockholders,  should 
be  borne  by  the  company  itself  repre- 
senting all  the  stockholders,  and  not  by  a 
single  individual.  The  Court  of  Appeals, 
however,  has  decided  that  under  the  law 
these  attorneys  had  no  lien  upon  the 
funds  recovered  by  them,  and  that  the 
stockholder  who  retained  them  must  pay 
their  fees. 

The  excuses  offered  for  these  restric- 
tive statutes  and  for  the  policy  of  the 
courts  regarding  these  suits,  while  plausi- 
ble, are  not  sufficient.  It  need  not  be 
denied  that  there  is  a  great  deal  of  legal 
banditry  and  blackmail  practiced  on 
great  corporations  in  proceedings  at  law 
instituted  solely  for  stock  market  pur- 
poses by  unscrupulous  lawyers  backed 
by  unprincipled  brokers.  But  it  is  as 
logical  practically  to  refuse  the  courts  to 


72    UNPUNISHED  COMMERCIAL  CRIME 

outraged  minority  interests  because  black- 
mail can  be  practiced,  as  it  would  be  to 
deny  the  right  of  private  property  be- 
cause some  men  are  thieves.  Rascals  out 
of  office  are  not  so  dangerous  as  those 
in  office,  and  these  limitations  and  re- 
strictions upon  stockholders'  suits  are 
calculated  to  afford,  and  do  afford,  direct 
encouragement  for  essentially  criminal 
financiering  by  persons  in  control  of  cor- 
porations thus  protected. 

As  a  people  we  have  a  curious  dislike 
to  punish  severely  criminals  of  good 
social  standing  who  have  respectable 
friends.  We  take  narrow  views  of  the 
purposes  of  criminal  law.  Our  concep- 
tion of  the  proper  use  of  punishment  as 
a  warning  to  others  is  limited  to  old- 
fashioned  crime,  and  rarely  finds  prac- 
tical application  to  such  offenses  as  we 
have  been  considering  here.  An  illustra- 
tion of  this  indifference  was  given  a  few 
years  ago  in  an  important  case  in  New 
York  city.  The  officers  of  a  national 


UNPUNISHED  COMMERCIAL  CRIME   73 

bank  had  permitted  their  institution  to 
be  wrecked  by  certifying,  and  thereby, 
of  course,  practically  guaranteeing,  the 
checks  of  a  firm  of  stock-brokers  for 
enormous  sums  when  the  brokers  did  not 
have  deposited  in  the  bank  the  money 
represented  by  the  checks.  This  was 
distinctly  forbidden,  and  made  a  crimi- 
nal offense,  by  the  national  banking  law. 
The  brokers  failed,  and  the  bank  having 
closed  its  doors  in  consequence,  the  pre- 
sident of  the  bank  was  indicted.  A  jury 
having  been  impaneled  to  try  him,  he 
pleaded  guilty,  his  counsel  urging,  as  a 
reason  for  clemency,  that  the  violation 
of  this  statute  was  a  habit  of  the  New 
York  banks  in  the  Wall  Street  district, 
and  that  if  the  wrecked  bank  had  not 
followed  this  law-breaking  custom  of  its 
competitors,  the  stock-brokers  would 
have  withdrawn  their  account.  The  plea 
was  successful,  and  the  officer  escaped 
with  a  small  fine.  Imagine  a  burglar  or 
a  pickpocket  urging  a  plea  for  clemency 


74   UNPUNISHED  COMMERCIAL  CRIME 

based  on  the  general  business  habits  and 
customs  of  his  criminal  confreres !  In 
dealing  with  offenses  by  criminals  of  pre- 
vious good  social  standing,  we  rarely 
look  beyond  the  offender  himself  to  con- 
sider the  welfare  of  the  community.  If, 
for  example,  a  man  steals,  and,  after  his 
indictment  for  the  crime,  his  friends  or 
relatives  repay  the  amount  of  the  theft, 
in  America  that  is  the  end  of  the  matter, 
and  the  offense  committed  against  crim- 
inal law  devised  as  a  protection  for  the 
public  is  entirely  negligible.  The  great- 
est bank  wrecker  in  American  criminal 
history  now  lives  undisturbed  in  New 
York.  He  never  served  a  day  in  jail  for  a 
defalcation  of  three  million  dollars.  The 
indictments  against  him  were  all  dis- 
missed a  few  years  ago.  He  even  seems 
to  have  returned  to  some  sort  of  social 
position,  and  the  society  columns  of  the 
New  York  "  Times,"  commenting  some 
time  ago  upon  a  reception  at  his  New 
York  home,  alluded  with  becoming  grav- 


UNPUNISHED  COMMERCIAL  CRIME    75 

ity  to  certain  Canadian  guests  as  friends 
whom  their  host  and  his  family  had  made 
"  during  their  long  stay  in  Quebec." 

Recorder  Goff,  the  well-known  New 
York  criminal  judge,  in  the  course  of  a 
striking  address  given  before  a  club  of 
lawyers  in  New  York  some  time  ago, 
related  an  incident  which  deserves  repe- 
tition in  this  connection.  He  had  been 
making  the  point  that  in  criminal  law 
the  present  American  tendency  is  to 
protect  the  criminal  at  the  expense  of 
society.  He  illustrated  his  remarks  by 
a  personal  incident  which,  as  the  writer 
recollects  it,  was  substantially  as  follows : 

"  I  was  in  the  City  of  Mexico,"  he 
said,  "  some  years  ago,  and  went  through 
the  great  city  prison  in  company  with 
the  Mexican  attorney- general.  As  we 
passed  along,  observing  the  prisoners,  all 
of  them  engaged  in  hard  manual  labor, 
one  of  them,  of  lighter  complexion  than 
the  rest,  attracted  my  attention.  '  That 
man  looks  like  an  American,'  I  remarked. 


76    UNPUNISHED  COMMERCIAL  CRIME 

The  attorney-general  smiled,  and  said 
that  he  was.  I  then  inquired  what  he  was 
there  for,  and  from  the  attorney-general's 
reply,  and  from  a  subsequent  conver- 
sation which  I  had  with  the  man  him- 
self, I  learned  the  following  facts :  Some 
years  before,  in  a  central  State  in  our 
own  country,  two  men  had  been  partners 
in  a  general  real-estate  business.  They 
lent  money  for  clients,  and  had,  in  addi- 
tion, the  funds  of  many  lodges  and  fra- 
ternal societies  in  their  keeping.  They 
misappropriated  this  money.  Finally, 
after  having  exhausted  the  means  of  con- 
cealment, and  having  reached  a  point 
where  discovery  was  practically  certain, 
they  debated  together  what  they  should 
do.  What  they  decided  upon  was  this : 
they  had  stolen  in  the  neighborhood 
of  $100,000,  and  they  divided  what 
remained  of  it;  one  of  them  fled  to 
Mexico  with  his  share  of  the  booty,  and 
immediately  took  steps  to  become  a 
Mexican  citizen,  so  that  he  could  not  be 


UNPUNISHED  COMMERCIAL  CRIME    77 

extradited  for  trial  in  the  United  States ; 
the  other  stayed  at  home.  After  the 
crime  was  discovered,  the  one  who  stayed 
at  home  was  indicted  and  tried.  He 
fought  desperately  in  the  courts,  but  was 
finally  convicted,  with  a  strong  recom- 
mendation by  the  jury  for  clemency. 
Powerful  influences  were  brought  to 
bear  in  his  behalf,  and  he  received  a  light 
sentence  of  less  than  two  years  in  prison, 
which  was  materially  reduced  by  good 
behavior.  His  prison  labor  consisted  in 
keeping  the  prison  books. 

"His  partner  in  crime,  who  fled  to 
Mexico,  was  apprehended  there,  and  his 
extradition  was  asked  for.  He  had,  how- 
ever, become  a  Mexican  citizen,  and 
under  the  treaty  between  Mexico  and  the 
United  States  could  not  be  extradited. 
Unfortunately  for  him,  this  application 
for  extradition  brought  him  to  the  atten- 
tion of  the  Mexican  authorities.  He 
could  not  be  sent  to  the  United  States 
for  trial,  for  he  was  a  Mexican  citizen, 


78    UNPUNISHED  COMMERCIAL  CRIME 

but  he  could  be  and  he  was  prosecuted 
as  a  Mexican  in  Mexico  for  bringing 
stolen  money  into  the  republic,  was  sen- 
tenced to  ten  years  at  hard  labor,  and  was 
serving  that  sentence  when  I  saw  him. 
He  had  about  seven  years  more  to  serve 
before  he  obtained  that  freedom  which 
his  equally  guilty  American  partner  then 
had  enjoyed  for  more  than  a  year." 

There  are  many  reasons  why  the  most 
important  part  of  business  crime  fails 
even  to  reach  the  criminal  courts.  In 
some  instances  the  apparent  inadequacy 
of  the  possible  punishment  makes  a  pros- 
ecution seem  hardly  worth  while.  The 
man  who,  after  inducing  the  business 
world  to  give  him  credit  for  many  thou- 
sands of  dollars,  transfers  his  property  in 
order  to  swindle  those  who  have  trusted 
him,  may  be  punished  with  no  greater 
severity  than  the  man  who  expectorates 
on  the  floor  of  a  public  conveyance. 
There  are  no  reported  cases  to  show  that 
the  New  York  statute,  which  makes  a 


UNPUNISHED  COMMERCIAL  CRIME    79 

misdemeanor  of  this  commonest  and 
meanest  offense  against  honest  business, 
ever  has  led  to  the  punishment  of  a  single 
offender.  What  moral  difference  can  there 
be  between  the  receiver  of  stolen  goods, 
knowing  them  to  be  stolen,  and  the  per- 
son who  receives  property  thus  conveyed 
by  a  swindling  debtor  *?  Yet  the  former 
may  be  punished  with  five  times  the  pen- 
alty of  the  latter,  and  while  proceedings 
for  the  offense  of  knowingly  receiving 
stolen  goods  are  common  in  the  crimi- 
nal courts,  the  reports  contain  no  record 
of  any  prosecution  of  the  commercial 
"  fence,"  the  transferee  of  fraudulently 
conveyed  goods. 

An  excellent  illustration  of  the  attitude 
of  the  criminal  law  in  a  great  commercial 
State  toward  essentially  criminal  meth- 
ods of  doing  business  is  contained  in  the 
New  York  statute  which  defines  the 
crime  of  larceny.  One  section  provides 
generally  that  this  crime  is  committed 
when  a  person  obtains  property  or  any 


80   UNPUNISHED  COMMERCIAL  CRIME 

article  of  value  from  the  true  owner,  "by 
color  or  aid  of  fraudulent  or  false  repre- 
sentation or  pretense."  A  subsequent  sec- 
tion, however,  carefully  provides  that  to 
obtain  property  "by  means  of  a  false 
pretense  is  not  criminal  where  the  false 
pretense  relates  to  the  purchaser's  means 
or  ability  to  pay,  unless  the  pretense  is 
made  in  writing  and  signed  by  the  party 
to  be  charged."  This  special  dispensation 
in  favor  of  the  commercial  thief  is  instruc- 
tive. Apparently  it  amounts  to  a  license 
for  him  to  obtain  property  on  credit  by 
any  false  statement  as  to  his  property  or 
his  ability  to  pay  which  his  ingenuity  may 
suggest,  and  guarantees  him  immunity 
from  criminal  prosecution  so  long  as  he 
avoids  putting  his  falsehood  in  the  form 
of  a  written  statement,  and  over  his  own 
signature  ! 

Another  form  of  commercial  crime 
which  is  constantly  on  the  increase  is  that 
of  counterfeiting  trademarks  and  trade- 
names.  In  these  days,  millions  of  dollars 


UNPUNISHED  COMMERCIAL  CRIME    81 

are  spent  annually  in  giving  value  to 
trademarks  by  advertising.  When  these 
trademarks  have  acquired  such  value,  by 
reason  of  the  sums  invested  in  them,  as 
to  make  them  second  to  few  forms  of 
commercial  property,  the  necessity  of 
protection  against  trademark  piracy  by 
punishment  of  the  offenders  (both  from 
the  standpoint  of  the  owner  of  the  trade- 
mark and  that  of  the  equally  deceived 
and  defrauded  public)  grows  more  and 
more  apparent.  Under  the  New  York 
law,  the  offense  committed  by  a  man 
who  steals  one  man's  business  and  an- 
other man's  name  by  counterfeiting  or 
imitating  a  valuable  trademark,  has  not 
yet  risen  to  the  dignity  of  a  felony.  The 
moral  difference  between  forging  a  man's 
name  to  a  spurious  note  and  forging  his 
trademark  to  a  spurious  box  or  bottle  is 
hard  to  see,  yet  the  more  ancient  form  of 
this  commercial  crime,  the  forgery  of  the 
paper,  may  be  punished  with  ten  times 
the  severity  of  the  equally  important, 


82    UNPUNISHED  COMMERCIAL  CRIME 

though  more  modern  offense.  Nor  is  this 
all.  Not  only  is  the  maximum  punish- 
ment small  for  trademark  counterfeit- 
ing, but  in  actual  practice  the  writer  is 
informed  that  in  New  York,  at  least, 
the  cases  in  which  imprisonment  has 
been  imposed  have  been  so  few  as  to  be 
entirely  negligible;  and  the  fines  have 
usually  been  so  small  as  to  amount  to 
very  little  in  preventing  the  growth 
of  these  crimes  against  fair  trade.  In  a 
very  recent  case,  the  only  one  in  the 
writer's  knowledge  in  which  imprison- 
ment was  actually  imposed  for  this 
offense  in  New  York,  two  men  were  con- 
victed of  having  made  and  sold  coun- 
terfeit caps  and  labels  sufficient  to  equip 
10,000  bottles  in  fraudulent  imitation  of 
the  valuable  trademarks  of  a  well-known 
and  heavily  advertised  whiskey.  The 
fine  imposed  did  not  exceed  the  cash 
actually  obtained  by  the  makers  of 
these  fraudulent  caps  and  labels  for  their 
goods ;  and  the  imprisonment  to  which 


UNPUNISHED  COMMERCIAL  CRIME   83 

these  men  were  sentenced  was  only  ten 
days ! 

The  New  York  Penal  Code  contains 
an  entire  chapter  devoted  to  "  Fraudulent 
Insolvencies  by  Corporations  and  other 
Frauds  in  their  Management."  Nearly 
all  the  offenses  it  creates  are  not  felonies, 
but  misdemeanors  only,  punishable  by 
maximum  penalties  of  a  year's  imprison- 
ment or  $500  fine.  For  example,  one 
of  the  commonest  ways  of  giving  ficti- 
tious value  to  stock,  and  of  selling  large 
quantities  of  worthless  certificates,  is  by 
paying  large  dividends,  not  from  the 
actual  earnings  of  the  company,  but 
out  of  the  money  paid  by  stockholders 
for  their  stock.  Stockholders  and  others, 
believing  from  these  dividends  that  the 
company  is  actually  prosperous  and  earn- 
ing money,  either  increase  their  holdings, 
or  buy  stock  at  high  prices,  only  to  find 
later  that  it  is  worthless.  The  Penal  Code 
provides  that  the  directors  of  a  corpora- 
tion who  perpetrate  this  swindle  are 


84   UNPUNISHED  COMMERCIAL  CRIME 

guilty  simply  of  a  misdemeanor.  Equally 
serious  is  the  action  of  directors  in  know- 
ingly making  and  publishing  false  state- 
ments or  reports  as  to  the  financial  con- 
dition of  the  company  of  which  they  are 
trustees.  Whittaker  Wright  (the  great 
company  promoter,  who  committed 
suicide  after  being  sentenced  to  hard 
labor  for  issuing  false  balance-sheets  of 
the  wrecked  London  and  Globe  Finance 
Corporation)  was  convicted  in  England 
under  a  statute  substantially  similar  to 
this  section  of  the  Penal  Code.  He  was 
sentenced  to  seven  years'  penal  servitude. 
Under  this  New  York  law  the  maximum 
penalty  which  he  could  have  received 
would  have  been  one  year's  imprisonment, 
or  a  fine  of  $500. 

Something  has  been  said  above  as  to 
the  offense  committed  by  the  directors 
of  a  trust  company  in  making  illegal 
loans,  ten  times  larger  than  those  allowed 
by  law,  to  its  president,  who  was  also  a 
director,  resulting  in  the  wrecking  of  the 


UNPUNISHED  COMMERCIAL  CRIME    85 

institution.  This,  also,  is  merely  a  mis- 
demeanor. The  adulteration  of  food  and 
drugs  is  a  misdemeanor,  for  which  in 
New  York,  during  the  past  administration 
of  the  city  government,  many  prosecu- 
tions have  been  had,  almost  exclusively, 
however,  in  relation  to  adulterations  of 
milk.  The  excellent  work  of  the  health 
officers  in  this  connection  is  a  shining 
example  of  what  can  and  should  be  done 
in  the  use  of  criminal  law  for  the  pro- 
tection of  the  community.  The  offense 
of  knowingly  selling  any  compound 
containing  a  poisonous  acid  or  other  sub- 
stitute for  the  juice  of  lemons  or  other 
fruit  is  punishable  by  a  fine  of  not  more 
than  $250,  or  six  months  in  prison. 

It  will  not  do  to  ascribe  the  failure  of 
the  criminal  law  to  punish  commercial 
crime  entirely  to  defects  in  the  law,  or  to 
the  inefficiency  of  its  prosecuting  officers. 
The  present  district  attorney  of  New 
York  county  deserves  special  commen- 
dation for  his  apparent  willingness  to  do 


86   UNPUNISHED  COMMERCIAL  CRIME 

his  full  duty  in  these  matters,  and  to  pun- 
ish important  types  of  criminal  business 
even  when  it  requires  the  exercise  of  a 
considerable  degree  of  moral  courage  to 
do  so.  Comment  upon  the  trials  of  Parks 
and  his  associates  in  the  trades-union 
conspiracies  is  unnecessary.  The  public 
service  which  those  prosecutions  did  and 
are  doing,  not  only  for  honest  trades- 
unionism,  but  for  honest  business  as  well, 
cannot  be  extolled  too  highly.  They 
afford  an  additional  example  of  what  the 
criminal  courts  can  do  in  the  hands  of 
conscientious  and  fearless  officials  when 
finally  supported  by  the  injured  persons 
most  concerned.  It  remains  to  be  seen, 
of  course,  whether  further  action  can  and 
will  be  taken  to  punish  not  merely  the 
criminal  bosses  of  labor  organizations, 
but  the  theoretically  more  respectable 
contractors  whose  bribe  money  and 
whose  dishonest  business  principles  were 
at  the  bottom  of  this  labor  trouble. 
It  would  not  be  surprising,  of  course, 


UNPUNISHED  COMMERCIAL  CRIME   87 

for  an  ordinary  district  attorney  to  prefer 
prosecuting  simple  crime  which  requires 
little  mental  effort  from  him,  or  sensa- 
tional crime  which  gives  him  a  desired 
prominence  in  the  papers,  to  attacking 
offenses  of  a  less  exciting  character, 
which  call  for  a  much  more  careful  ex- 
amination of  law  and  fact ;  where  the 
offender  is  likely  to  be  represented  by 
counsel  of  large  abilities ;  where  the  pun- 
ishment, if  conviction  be  obtained,  is  al- 
most certain  to  be  light,  and  where,  from 
the  social  connections  of  the  offender,  a 
suspended  sentence  would  be  quite  as 
likely.  The  real  trouble,  however,  so  far 
at  least  as  crimes  are  concerned,  affecting 
merchants  and  the  business  world  is  with 
the  business  men  themselves.  Except, 
perhaps,  in  a  few  cases,  as,  for  example, 
trademark  counterfeiting,  in  which  crim- 
inal prosecutions  are  fairly  frequent,  the 
attitude  of  the  average  business  man  who 
has  been  defrauded  toward  the  swindler 
is  this  :  If  there  is  a  fair  chance  of  get- 


88    UNPUNISHED  COMMERCIAL  CRIME 

ting  back  a  substantial  portion  of  his 
money  quickly,  and  without  too  much 
inconvenience  to  himself,  he  will  take 
action  in  the  civil  courts,  and  in  New 
York  the  delay  of  the  civil  courts  is  such 
as  practically  to  cause  commercial  liti- 
gation to  cease.  But  if  he  is  certain  that 
the  man  who  wronged  him  is  "judgment 
proof,"  and  that  no  money  will  result 
from  litigation,  the  average  business  man 
will  charge  the  cheat  up  to  profit  and 
loss,  and  leave  the  task  of  criminal  pros- 
ecution to  some  one  not  so  busy  as  he 
is.  He  has  no  time  to  waste  in  sitting 
around  criminal  courts  when  all  that  his 
expenditure  of  time  can  accomplish  is 
merely  the  punishment  of  the  offender, 
and  not  the  result,  to  him  more  impor- 
tant of,  getting  his  money  back.  More- 
over, having  a  good  opinion  of  his  own 
business  shrewdness,  he  will  not  care  to 
advertise  the  fact  that  he  has  met  a  man 
"  smart  "  enough  to  cheat  him.  It  is  the 
same  spirit  which  makes  him  prefer  in 


UNPUNISHED  COMMERCIAL  CRIME    89 

civic  matters  to  endure  high  taxes  and 
rascality  in  public  office  rather  than  to 
take  a  personal  interest  in  politics,  and 
which  makes  him  willing  to  hang  on 
to  a  strap,  or  to  pay  an  additional  fare, 
when  he  should  have  a  transfer.  He  is 
too  busy. 

A  more  striking  illustration  of  this 
state  of  things  cannot  be  found  than  is 
afforded  by  the  working  of  the  Federal 
Bankruptcy  Law.  That  law  establishes  a 
series  of  criminal  offenses  punishable  by 
imprisonment.  Theoretically,  under  it  a 
man  who  deliberately  plans  to  conceal 
his  property,  to  swear  himself  a  bank- 
rupt and  be  discharged  by  law  from  the 
just  claims  of  his  creditors,  has  the  ter- 
rors of  criminal  prosecution  facing  him. 
Fraudulent  sworn  schedules  in  bank- 
ruptcy, fraudulent  concealment  of  assets 
by  alleged  bankrupts,  and  perjury  in 
bankruptcy  proceedings  are  notoriously 
common,  as  every  business  man  knows. 
Yet,  with  all  the  thousands  of  bankruptcy 


9o   UNPUNISHED  COMMERCIAL  CRIME 

cases  which  have  been  passed  upon  by 
the  Federal  Courts  since  the  bankruptcy 
law  went  into  effect,  the  number  of  crim- 
inal trials  for  offenses  provided  for  in 
that  law  have  been  so  few,  and  attended 
with  such  meagre  results,  as  to  justify 
the  statement  that  this  branch  of  the  law 
has  been  practically  unenforced.1 

It   is  the   proud   affirmation  of  our 

1  The  Bankruptcy  Law  is  seriously  defective  in  con- 
taining no  adequate  provision  for  criminal  punishment 
for  the  fraudulent  concealment  of  property  in  contem- 
plation of  bankruptcy.  Perjury,  however,  by  alleged 
bankrupts  is  punishable.  Since  this  article  was  writ- 
ten, five  bankrupts  have  in  a  single  month  been  con- 
victed of  such  perjury  in  trials  before  Judge  Holt  of 
the  United  States  District  Court  in  New  York  city. 
The  learned  judge  set  his  brethren  on  the  bench  a 
good  example  by  giving  all  but  one  of  these  criminals 
adequate  sentences  of  imprisonment,  remarking  after 
the  conclusion  of  the  trials  that  if  the  present  practice 
should  be  suffered  to  continue,  of  obtaining  property 
and  then  concealing  it  by  means  of  perjury  committed 
during  the  course  of  bankruptcy  proceedings,  "the 
bankruptcy  act  would  be  impaired  practically  to  the 
extent  of  its  entire  usefulness." 


UNPUNISHED  COMMERCIAL  CRIME   91 

courts  that  the  law  is  no  respecter  of  per- 
sons. It  is  of  the  highest  public  impor- 
tance that  this  maxim  should  not  be  an 
extravagant  boast,  but  the  expression 
of  a  vital  reality.  In  a  decade  of  un- 
paralleled stock-jobbing,  marked  by  the 
inflation  through  false  prospectuses  and 
devious  market  manipulations  of  great 
corporations,  the  decline  of  whose  stock 
involves  great  losses  to  thousands  of  hon- 
est investors,  the  criminal  courts  should 
be  called  upon  to  illustrate  by  action 
that  affirmation  of  the  law. 

Over  a  century  ago,  in  England,  there 
was  a  criminal  trial  the  like  of  which 
never  before  nor  since  has  been  witnessed 
in  the  legal  proceedings  of  the  nations. 
The  country  was  then  filled  with  men 
who  had  returned  from  India  rich  with 
the  wealth  of  an  oppressed  people,  and 
who  flaunted  before  the  eyes  of  their 
home-staying  neighbors  the  spoils  of  for- 
eign crime.  The  word  "  nabob  "  came 
into  the  language  rilled  with  a  meaning 


92    UNPUNISHED  COMMERCIAL  CRIME 

to  the  moral  life  of  the  English  people 
which  is  not  yet  forgotten.  It  signified 
such  a  lowering  of  standards  of  pub- 
lic morality  as  perhaps  no  other  word 
in  the  language  has  signified.  But  the 
conscience  of  the  people  reacted  against 
it.  Before  the  House  of  Lords,  Warren 
Hastings,  the  greatest,  though  not,  per- 
haps, the  worst,  of  nabobs,  was  tried.  He 
was  prosecuted  by  a  galaxy  of  forensic 
orators,  such  as  never  before  were  associ- 
ated in  the  prosecution  of  a  great  criminal. 
Burke,  Fox,  and  Sheridan  represented 
not  merely  the  House  of  Commons, 
but  the  English  people,  and  the  reas- 
sertion  of  the  national  honor  which  had 
been  outraged  by  the  criminal  actions  of 
the  nabob  Englishmen  in  India.  That 
trial,  as  we  know,  did  not  result  in  the 
conviction  and  sentence  of  the  famous 
offender,  but  the  influence  of  the  prose- 
cution itself  on  the  moral  sense  of  the 
people  of  England  cannot  be  overesti- 
mated. It  meant  that  the  English  people 


UNPUNISHED  COMMERCIAL  CRIME   93 

placed  upon  wealth  obtained  by  crim- 
inal oppression  the  stamp  of  their  indig- 
nant disapproval,  and  by  that  fact  the 
great  prosecution  was  not  a  failure,  but  a 
signal  success. 

Conditions  have  changed.  The  na- 
bobs of  our  day  derive  their  enormous 
revenue  not  from  direct  physical  oppres- 
sion of  the  weak  and  helpless,  but  from 
the  more  subtle  and  bloodless  ways  of 
devious  finance.  One  of  the  functions 
of  the  criminal  law,  in  these  days  disre- 
garded or  forgotten,  is,  borrowing  the 
words  of  Emerson,  "to  correct  the  theory 
of  success."  It  is  high  time  the  criminal 
courts  should  recognize  the  present  duty, 
which  the  conditions  of  these  times 
make  daily  more  imperative,  of  drawing 
definitely  the  line  which  shall  distin- 
guish before  the  eyes  of  all  men  the 
finance  which  is  finance  from  the  finance 
which  is  crime. 


IV 

GENEROSITY  AND   COR- 
RUPTION 


GENEROSITY   AND  CORRUP- 
TION 

SOME  years  ago,  there  died  in  New  York 
a  politician  who  had  been  the  notori- 
ous leader  of  one  of  the  slum  districts. 
During  the  greater  part  of  his  career, 
he  had  been  the  subject  of  the  most 
pointed  attacks  by  individuals  and  or- 
ganizations interested  in  decent  govern- 
ment, for  he  had  been  the  enemy  of 
everything  which  meant  honesty  in  pub- 
lic affairs  and  social  life.  He  had  made 
money  corruptly  by  extending  his  favor, 
under  the  usual  arrangements,  to  individ- 
uals who  wanted  franchises  for  gas,  elec- 
tric light,  and  street  railway  operations; 
by  affording  his  protection  and  influence 
to  "  policy  men,"  to  pool-room  gamblers 
and  disorderly-resort  proprietors.  His 
name  had  been  signed  hundreds  of  times 


98     GENEROSITY   AND    CORRUPTION 

on  the  bail  bonds  of  thieves  and  fallen 
women. 

He  was  a  politician  of  a  type  com- 
mon enough  in  the  great  American  cities, 
and  the  characteristics  of  his  career  had 
been  long  familiar  to  the  newspaper- 
reading  public.  Yet  when  he  died,  the 
largest  church  in  the  district  was  filled 
with  a  vast  crowd  of  mourners.  As  the 
papers  said,  there  was  not  a  dry  eye  in 
the  church.  It  was  genuine  sorrow.  For 
the  money  which  his  more  reputable  gas 
and  railway  friends  from  the  brown-stone 
districts  had  given  him  had  paid  many 
an  old  woman's  rent,  had  helped  many 
a  friend  in  trouble.  The  "  protection  " 
money  had  been  freely  given  to  the  out- 
ings and  games  of  the  social  organiza- 
tions of  the  district.  His  "  pull "  had 
always  been  available  for  the  man  who 
wanted  a  job.  The  money  of  Peter  had 
gone  to  an  army  of  Pauls,  and  the  great 
robber  baron  had  died  comparatively 
poor.  He  had  been  a  public  enemy  — 


GENEROSITY   AND    CORRUPTION     99 

with  a  big  heart ;  dishonest  —  and  gen- 
erous. 

There  are  two  lines  in  Tennyson's 
"Idylls  of  the  King"  which  seem  to 
embody  a  kind  of  fascinating  puzzle:  — 

.   .   .  "God  fulfils  himself  in  many  ways, 
Lest  one  good  custom  should  corrupt  the  world." 

How  can  any  custom  which  is  good 
be  corrupting  ?  Can  there  be  a  danger- 
ous virtue?  Considerable  rumination 
has  persuaded  the  writer  into  giving  an 
affirmative  answer  to  the  question,  the 
episode  of  the  funeral  of  the  District 
Leader  being  only  one  of  the  cases  in 
point  which  have  led  to  this  conclu- 
sion. 

The  foundation  of  healthy,  sane  life, 
and  of  right  public  law  and  government, 
is  justice.  This  is  trite  and  platitudinous 
enough,  but  it  is  dangerous  to  forget  it. 
The  departed  District  Leader  got  his 
power  in  life  and  his  apology  and  de- 
fense in  death  from  the  fact  that  through- 
out his  career  he  ignored  or  abused  all 


ioo     GENEROSITY   AND    CORRUPTION 

known  notions  of  justice — and  was  gen- 
erous instead. 

There  is  a  certain  dramatic  quality  in 
generosity  which  appeals  to  the  heart. 
A  mean  rascal  we  all  despise  and  hate ; 
but  a  rascal  with  a  big  heart,  who  never 
forgets  his  friends,  finds  many  apologists. 
It  is  of  the  utmost  importance  to  a  coun- 
try organized,  like  ours,  on  a  democratic 
basis,  that  as  a  people  we  should  be 
highly  sensitive  to  injustice.  That  sen- 
sitiveness is  the  most  necessary  protection 
for  freedom,  the  greatest  force  for  good 
government.  Anything  which  tends  to 
befog  our  ideals  of  justice,  or  to  make  us 
underestimate  its  importance,  is  a  danger 
to  be  guarded  against. 

In  the  latter  days  of  Rome,  the  dar- 
lings of  the  rabble  were  the  oppressors 
of  Africa,  who  transmuted  the  sweat  and 
blood  of  conquered  provinces  into  bread 
and  circuses  for  the  Roman  mob.  Jus- 
tice, long  since  dead  in  the  imperial  city, 
had  been  succeeded  by  a  riot  of  generosity 


GENEROSITY   AND   CORRUPTION     101 

of  the  most  lavish  and  barbaric  kind.  It 
would  be,  of  course,  a  jaundiced  eye 
which  should  make  any  but  a  most  dis- 
tant parallel  between  the  Roman  rabble 
and  the  American  people.  But  much,  if 
not  everything,  is  forgiven  the  million- 
aire whose  fortune  has  been  wrung  from 
the  over-tempted  consciences  of  alder- 
men, if  he  recognizes  what  the  college 
presidents  call  "  The  Responsibility  of 
Men  of  Wealth." 

As  a  people,  we  have  fairly  good  taste 
in  our  attitude  toward  the  philanthropy 
which  finds  its  root  in  fraud  and  unjust 
enrichment.  If  a  traction  magnate  or  a 
tricky  financier  gives  us  a  hospital  or  art 
gallery,  we  do  not  cry  in  an  offensive 
chorus,  "  Where  did  he  get  the  money  *?  " 
We  accept  with  a  philosophic  gratitude 
anything  given  back  to  us  collectively 
which  was  stolen  from  us  individually, 
for  the  excellent  reason  that,  the  ill-got- 
ten booty  having  been  once  acquired 
by  the  great  operator,  it  is  a  public  good 


102     GENEROSITY   AND    CORRUPTION 

fortune  that  his  expenditure  of  it  should 
in  some  degree  take  the  form  of  pub- 
lic gift,  rather  than  of  private  wassail 
or  ostentatious  extravagance.  The  great 
man,  we  say,  was  not  obliged  to  spend 
anything  on  public  charity.  His  fortune, 
by  whatever  devious,  crooked  ways  ac- 
quired, is,  so  far  as  the  legal  title  is  con- 
cerned, his,  and  not  ours ;  and  so  any 
portion  of  it  which  he  may  choose  to 
transmute  into  public  service  is  a  just 
cause  for  general  rejoicing.  It  all  goes  to 
confirm  our  faith  that  there  are  bowels 
of  compassion  and  spots  of  virtue  in  the 
worst  of  men,  even  in  our  most  invet- 
erate millionaires.  Having  accepted  the 
gift,  we  refuse  to  vilify  the  donor. 

One  of  the  effects  of  the  generosity 
of  the  unjust,  which  deserves  more  con- 
sideration than  it  gets,  is  this :  it  closes 
the  mouths  of  critics  whose  voices  might 
otherwise  be  heard  in  effectual  protest 
against  public  wrongs  or  defects  which 
cry  for  change  in  economic  conditions. 


GENEROSITY   AND    CORRUPTION     103 

Limitation  of  space  confines  the  writer 
to  one  illustration. 

There  was  public  agitation,  some  years 
ago,  concerning  a  certain  bill,  involving 
a  franchise  of  great  value,  which  was 
being  heavily  lobbied  through  the  New 
York  legislature.  A  movement  was  at 
once  begun  against  the  measure,  and 
during  its  progress  a  gentleman  stand- 
ing justly  high  in  public  esteem,  a  man 
of  unquestionable  probity  and  of  great 
influence,  was  asked  to  take  part  in  this 
protest.  He  remained  in  doubt  for  a  few 
days,  and  then  declined.  He  was  the  pre- 
sident of  an  important  charitable  institu- 
tion dependent  largely  for  its  support 
on  the  generosity  of  a  particular  donor, 
who  was  also  the  real  sponsor  for  the  grab 
bill.  With  what  he  conceived  to  be  the 
prosperity  of  his  institution  at  stake,  he 
could  not  feel  it  to  be  his  duty  personally 
to  antagonize  the  corrupt  scheme  of  the 
generous  supporter  of  his  institution. 
Other  able  men,  he  argued,  could  read- 


io4     GENEROSITY   AND    CORRUPTION 

ily  be  obtained  to  do  the  work  which, 
under  the  peculiar  circumstances,  he  must 
refuse  to  do  himself.  The  gain  which  the 
opposition  to  the  lobby  for  the  bill  might 
make  by  his  influence  did  not  seem  to  him 
at  all  equal  to  the  quite  probable  loss 
which  he  felt  might  come  to  his  institu- 
tion by  such  offensive  action  on  his  part. 
Now  this  man  is  normally,  and  when 
not  subject  to  peculiar  and  perplexing 
circumstances,  neither  weak  nor  timid, 
but  quite  the  contrary.  In  this  particular 
case  he  simply  had  been  called  on  to 
decide  a  hard  problem.  His  decision 
was  undoubtedly  wrong  from  an  abstract 
moral  standpoint ;  but  in  view  of  the 
great  responsibility  which  he  felt  for  the 
welfare  of  his  institution,  his  error  was  at 
least  pardonable.  He  was  a  man  whose 
silence  could  not  have  been  bought  by 
any  personal  consideration.  Yet  the  gen- 
erosity of  a  public  enemy  to  his  particu- 
lar institution  of  charity  had  effectually 
closed  his  mouth. 


GENEROSITY   AND    CORRUPTION     105 

Just  how  far  the  loss  of  influence  of 
the  city  churches  is  due  to  similar  con- 
ditions, it  is  hard  to  say.  To  the  writer, 
there  seems  to  be  a  certain  tendency 
among  the  great  metropolitan  churches 
to  plan  their  expenditures  on  the  basis 
of  the  largest  amount  which  may  be  ex- 
pected from  the  richest  parishioner.  So 
that  in  case  any  two  or  three  heavy  con- 
tributors should  for  some  reason  termi- 
nate abruptly  their  donations,  the  work 
of  the  church  would  be  practically  crip- 
pled. With  the  finances  of  the  church 
built  on  such  a  foundation,  it  is  hardly 
surprising  that  the  sharp  edge  of  pulpit 
criticism  should  be  dulled,  or  should  find 
expression,  if  at  all,  in  innocuous  and 
ineffectual  generalities  that  keep  up  the 
brave  show  of  a  spiritual  independence 
which  has  been  long  since  smothered  by 
charity. 

The  medical  world  to-day  is  full  of 
learned  talk  about  germ  diseases,  and  the 
great  scientists  are  constantly  increasing 


io6     GENEROSITY   AND    CORRUPTION 

the  fund  of  human  knowledge  as  to  how 
these  germs  may  be  destroyed,  or  their 
perpetuation  be  prevented.  If  it  were 
only  possible  for  some  spiritual  scientist 
to  devise  some  workable  scheme  to  pre- 
vent in  the  moral  world  the  perpetua- 
tion of  perverted  ideals !  We  read  much 
to-day  of  the  Great  White  Plague, — 
tuberculosis,  —  and  how  it  breeds  and 
spreads  in  the  tenements,  destroying  its 
thousands.  But  the  Great  White  Plague 
in  the  rich  man's  university,  the  germ  of 
moral  tuberculosis  in  the  ideal  of  suc- 
cess, avoids  the  microscope. 

After  all,  the  principal  use  of  the  col- 
lege is  as  a  place  where  the  next  gen- 
eration is  to  get  right  ideas  of  what  is 
worth  while  in  life  itself.  The  academic 
facts  which  to  the  ignorant  seem  the 
advantages  of  education  are  of  minor 
importance.  We  hear  much  during  the 
season  of  college  commencements  of  the 
necessities  of  the  modern  university  in 
the  way  of  enlarged  endowments  and  in- 


GENEROSITY   AND    CORRUPTION     107 

creased  equipment  Some  of  this  talk  is, 
of  course,  reasonable  enough.  It  is  ad- 
dressed mainly  to  the  rich,  as  a  demand 
for  the  recognition  by  them  of  a  duty 
of  generosity,  one  which  in  our  days  has 
had  a  most  remarkable  response.  But 
apparatus  is  an  impossible  substitute  for 
ideals,  and  the  best  endowment  of  a 
college  is  the  character  of  its  graduates. 
The  two-thousand-dollar  bequest,  for 
example,  to  his  Alma  Mater,  which  the 
will  of  the  late  William  H.  Baldwin  con- 
tained, was  small  if  considered  as  a  mere 
matter  of  money,  but  his  character  and 
the  ideals  of  public  service  which  his  life 
expressed  form  part  of  that  permanent 
endowment  which  alone  makes  a  uni- 
versity great.  The  memory  of  a  railroad 
president  ready  to  sacrifice,  if  need  be, 
his  position,  rather  than  lose  an  oppor- 
tunity for  usefulness  on  an  unpaid  com- 
mittee of  citizens  banded  together  for 
important  civic  service,  is  a  rarer  and 
more  precious  contribution  to  the  fibre 


io8     GENEROSITY   AND    CORRUPTION 

of  university  life  than  any  mere  material 
bounty  from  ravenous  fingers  unclutched 
by  hypocrisy  or  the  fear  of  death. 

The  principal  criticism  of  the  gener- 
osity to  colleges  of  men  whose  great  for- 
tunes have  been  obtained  by  doubtful 
methods  and  through  suspicious  sources 
is  not  alone  that  their  money  comes 
coupled  with  their  own  personal  histo- 
ries, nor  that  the  hope  of  their  favor  has 
an  undesirable  influence  on  certain  forms 
of  college  teaching  and  on  the  public 
utterance  of  college  officials,  but  that 
these  gifts  of  brick  and  mortar  and  money 
have  a  tendency  to  make  the  ideal  en- 
dowment seem  less  valuable  and  impor- 
tant. We  cannot  afford  to  have  the  tra- 
ditions of  our  colleges  become  largely 
the  traditions  of  suspiciously  rich  men 
who  made  money  and  built  buildings. 

It  seems  like  the  mere  hyperbole  of  a 
jealous  and  disappointed  spirit  to  affirm 
that  the  corrupt  practices  of  the  unjustly 
rich  are  less  harmful  than  their  benevo- 


GENEROSITY   AND   CORRUPTION     109 

lences ;  but  the  statement  will  bear  argu- 
ment '  and  furnish  much  reason  for  a 
belief  in  its  accuracy.  It  is  because  this 
benevolence  tends  to  create  in  the  popu- 
lar mind  confusion  on  a  matter  of  morals 
concerning  which  we  cannot  afford  to 
have  confusion.  We  cannot  afford  to 
believe  that  the  seizing  of  special  and 
unjust  privileges,  or  the  use  of  corrupt 
practices  or  oppression,  by  which  enor- 
mous wealth  is  increasingly  acquired, 
may  be  excused  or  palliated  by  public 
gift  or  private  benevolence,  or  by  gen- 
erosity, however  bountiful.  We  cannot 
afford  to  let  a  delayed  or  partial  restitu- 
tion acquire  a  false  glamour,  and  under 
a  false  name  become  a  substitute  for 
common  honesty. 

There  is  no  place  where  the  substitu- 
tion of  generosity  for  justice  is  a  greater 
evil  than  in  the  courts.  The  great  delay 
which  frequently  occurs  in  the  selection 
of  jurors  in  law  cases  is  due  to  the  en- 
deavor of  one  or  the  other  of  the  oppos- 


no    GENEROSITY    AND    CORRUPTION 

ing  lawyers — rarely  of  both — to  pick 
out  jurors  who  will  deal  justly  with  the 
rights  of  litigants,  and  who  will  not  be 
merely  generous  at  the  expense  of  justice. 
The  task  of  selecting  such  jurors  is  in- 
creasingly difficult,  particularly  in  acci- 
dent cases  against  railways.  The  injustice 
which  results  from  the  corrupt  granting 
of  railway  franchises,  for  example,  has  a 
larger  area  than  is  generally  supposed. 
There  is  a  strong  tendency  manifested 
in  juries  to  even  up  this  original  unjus- 
tice  by  a  generosity  which  is  itself  unjust. 
For  injustice  almost  invariably  begets  a 
spurious  generosity. 

The  writer  listened,  some  years  ago, 
in  the  New  York  Supreme  Court  to  the 
trial  of  an  accident  case  brought  by  the 
widow  and  children  of  a  man  who  had 
been  killed  by  the  street  railway  which 
runs  on  Broadway,  to  recover  damages 
from  the  railroad  company  for  having 
caused  his  death.  The  widow  produced 
only  one  witness,  and  his  testimony  was 


GENEROSITY   AND    CORRUPTION     in 

clearly  perjury  from  start  to  finish,  while 
four  reputable  bystanders  called  by  the 
railroad  clearly  showed  that  the  accident 
had  been  the  result  of  the  recklessness 
of  the  deceased:  yet  the  jury,  after  some 
delay,  brought  in  a  large  verdict  for 
the  widow  and  the  children.  One  of  the 
jurors  explained  his  verdict  thus :  "  The 
railroad  company  got  on  to  Broadway 
by  putting  up  a  little  money  to  a  bunch 
of  aldermen.  They  got  their  franchise 
for  next  to  nothing,  and  that  woman  and 
four  children  have  as  good  a  right  to 
their  money  as  the  road  has  to  its  fran- 
chise. With  all  the  money  the  road  gets 
out  of  Broadway,  they  can  afford  to  do 
something  for  that  man's  family,  and  I 
am  glad  we  had  a  chance  to  give  them 
the  verdict.  I  could  not  go  home  and 
tell  my  wife  that  I  had  a  chance  to  give 
some  railroad  money  to  a  widow  and 
four  children,  and  did  not  do  it.  She 
would  put  me  out  of  the  house." 

The  railway  companies  complain  bit- 


H2    GENEROSITY   AND   CORRUPTION 

terly,  and  often  with  much  reason,  of  the 
injustice  done  by  such  verdicts,  but  they 
forget  the  original  injustice  which  these 
juries  blindly,  blunderingly,  and  unjustly 
seek  to  correct. 

In  politics,  as  we  all  know,  the  worst 
class  of  politicians,  the  one  whose  power 
for  evil  is  the  hardest  to  overcome,  is 
the  class  in  which  corruption  is  coated 
with  the  whitewash  of  generosity,  —  the 
legislative  burglar  with  a  big  heart.  The 
log-rolling  which  is  the  bane  of  our 
politics  is  nothing  more  nor  less  than  the 
exchange  of  generosities  by  public  ser- 
vants at  public  expense,  and  a  large  part 
of  bad  law-making  is  the  result  of  the 
unjustifiable  favors  which  one  uncon- 
scionably kind-hearted  statesman  extends 
to  another. 

It  is,  of  course,  a  mean  soul  which  is 
not  warmed  by  generosity  and  benevo- 
lence and  the  expression  through  such 
acts  of  the  larger  humanities.  In  com- 
parison with  true  generosity, justice  seems 


GENEROSITY   AND    CORRUPTION     113 

meagre  and  mean,  as  the  cold  working 
of  the  intellect  rather  than  the  warm  pul- 
sation of  the  heart.  Justice,  mere  justice, 
never  satisfies.  Aristides  the  Just  was 
ostracized  by  the  Greeks,  not  because  he 
was  just,  but  because  he  was  nothing  but 
just.  From  fibre  like  his,  heroes  are  not 
made.  The  natural  man  much  prefers 
Robin  Hood.  Without  generosity  the 
moral  world  seems  dull,  gray,  cold,  and 
conventional.  It  lacks  sap  and  vitality, 
and  the  imagination  is  not  touched.  But, 
after  all,  justice  is  the  rock  on  which 
alone  generosity  can  safely  build,  and 
when  it  seeks  some  other  foundation,  it 
is  the  scriptural  house  built  on  the  sand, 
and  like  it  cannot  endure. 


THE  LITERATURE  OF 
EXPOSURE 


THE  LITERATURE  OF 
EXPOSURE 

THE  old-time  exhorters  who  made  un- 
comfortable the  youth  of  our  fathers  had 
as  a  special  object  of  their  efforts  the 
awakening  of  the  "  conviction  of  sin." 
To  them  man,  in  his  natural  and  uncon- 
verted state,  was  a  vile  thing,  and  the 
hope  for  his  future  lay  in  his  recognizing 
his  vileness,  his  spiritual  unworthiness. 
The  last  stage  of  the  old-time  conver- 
sion was  reached  when  a  previously 
comfortable  and  contented  soul  felt  it- 
self, under  the  new  process  of  regener- 
ation, tortured  and  lost  in  a  morass  of 
personal  obliquity,  when  all  past  short- 
comings and  sins  of  omission  and  com- 
mission loomed  big  and  black  before 
it;  when  it  shivered  with  the  thought 
of  the  frightful  future  which  must  be 


n8     THE  LITERATURE   OF  EXPOSURE 

the  inevitable  punishment  for  an  evil 
past. 

In  the  course  of  time  theology  learned 
that  the  methods  and  theories  of  the  old 
religious  exhorters  were  not  only  weak, 
but  fundamentally  wrong.  It  learned 
that  the  true  way  of  making  men  better 
was  not  by  telling  them  that  they  were 
only  worms  in  the  eyes  of  the  Almighty, 
but  by  teaching  them  that  they  were 
made  in  his  image  ;  that  there  was  a  no- 
bility in  life  itself,  and  that  in  the  rough- 
est and  lowest  of  human  creatures  there 
was  a  touch  of  the  Divine,  the  seed  at 
least  of  immortal  worthiness.  The  hard, 
unlovely,  #nd  unloving  spiritual  leaders 
of  our  fathers'  and  grandfathers'  time  told 
men  of  their  sins  and  iniquities,  made 
them  conscious  of  their  spiritual  sores 
and  ulcers,  the  rags  in  their  raiment, 
humbled  and  depressed  them.  They 
were  destructive  critics  of  life.  To-day 
the  spiritual  teachers  who  are  doing 
most  for  the  moral  health  of  the  world 


THE   LITERATURE  OF  EXPOSURE     119 

are  still  critics,  but  constructive  rather 
than  destructive  in  their  attitude  toward 
life.  They  are  teachers  who  believe  that 
man  attains  his  spiritual  stature  most 
readily  by  being  told  less  of  what  he  is 
not  and  more  of  what  he  is,  and  who 
find  that  the  greatest  amount  of  spir- 
itual strength  can  be  developed  by  in- 
teresting man  in  doing  the  things  which 
make  life  worth  living.  These  teachers 
find  that  the  simplest  and  best  way  to 
help  men  to  escape  evil  ways  is  not  by 
eternal  threats  and  warnings,  but  by  caus- 
ing them  to  concentrate  the  greatest 
possible  amount  of  moral  energy  on 
doing  something  positive  and  worth 
while.  Hell  has  dropped  out  of  our 
modern  theology,  not  so  much  because 
we  have  ceased  to  believe  in  it,  as  be- 
cause its  insufficiency  as  an  instrument 
for  permanent  moral  regeneration  has 
with  the  passage  of  time  become  more 
and  more  apparent ;  for,  while  we  are 
sometimes  strongly  moved  by  what  we 


izo     THE   LITERATURE  OF  EXPOSURE 

hate  and  fear,  we  are  perpetually  influ- 
enced by  what  we  love. 

In  the  past  decade  there  has  grown  up 
in  this  country  a  school  of  incomplete 
idealists,  social  reformers,  who,  in  their 
methods  and  theories,  seem  to  have  gone 
back  to  the  old-time  theology.  They 
seek  to  apply  to  society  as  a  whole  the 
methods  which  failed  with  the  individual. 
From  one  branch  of  this  cult  has  come 
the  modern  literature  of  "  exposure." 
Like  the  three  cheerful  friends  of  Job, 
they  show  us  our  social  sore  spots.  They 
expose  in  countless  pages  of  magazines 
and  newspapers  the  sordid  and  depress- 
ing rottenness  of  our  politics ;  the  hope- 
less apathy  of  our  good  citizens ;  the 
remorseless  corruption  of  our  great 
financiers  and  business  men,  who  are 
bribing  our  legislatures,  swindling  the 
public  with  fraudulent  stock  schemes, 
adulterating  our  food,  speculating  with 
trust  funds,  combining  in  great  monop- 
olies to  oppress  and  destroy  small  com- 


THE  LITERATURE   OF  EXPOSURE     121 

petitors  and  raise  prices,  who  are  breaking 
laws  and  buying  judges  and  juries.  They 
show  us  the  growth  of  business  "  graft," 
the  gangrene  of  personal  dishonesty 
among  an  honorable  people,  the  depress- 
ing increase  in  the  number  of  bribe-takers 
and  bribe-givers.  They  tell  us  of  the 
riotous  extravagance  of  the  rich,  and  the 
growth  of  poverty.  These  exposures 
form  the  typical  current  literature  of  our 
daily  life.  As  our  appetite  grows  jaded 
and  surfeited,  the  stories  become  more 
sensational  so  as  to  retain  our  attention. 
Titus  Gates  and  his  plot  live  again  in 
the  amazing  historian  of  modern  finance. 
The  achievement  of  the  constructive  ele- 
ments of  society  has  been  neglected  to 
give  space  to  these  spicy  stories  of  graft 
and  greed. 

There  are  two  points  in  the  literature 
of  exposure  worthy  of  note.  The  first  is 
its  extraordinary  copiousness,  and  the 
second  is  that  so  few  of  the  writers  who 
so  cleverly  point  out  to  us  our  social 


122     THE   LITERATURE  OF  EXPOSURE 

sores  seem  to  have  any  kind  of  salve  in 
their  hands.  "  Exposure  "  has  become  a 
peculiar  art,  which,  like  some  other  arts, 
seems  to  exist  for  its  own  sake. 

The  editorials  and  articles  which  make 
up  the  literature  of  exposure  rarely  in- 
clude, even  in  a  very  small  measure, 
any  useful  or  careful  analysis  of  bad 
social  conditions,  or  of  those  defects  in 
law  and  its  administration  through  which 
opportunities  for  unjust  enrichment  are 
afforded  to  the  keen,  the  unscrupulous, 
and  the  over-tempted.  These  writers  do 
not  belong  to  that  class  of  social  critics 
whose  purposeful  and  devoted  studies  of 
economic  conditions  and  of  the  history  of 
business  systems  have  given  us  so  many 
suggestions  of  ways  and  means  for  pro- 
gress. The  literature  of  exposure  is  not 
criticism  in  any  such  sense,  and  in  com- 
parison is  simple  indeed.  For  it  exposes, 
not  the  opportunities  which  create  temp- 
tations, but  the  individuals  who  succumb. 
It  seems  to  arraign,  not  the  defects  in 


THE   LITERATURE   OF  EXPOSURE     123 

the  social  system,  but  humanity  itself,  by 
the  denunciation  of  a  countless  number 
of  individuals  who  do  real  or  fancied 
wrongs.  It  takes  the  whole  burden  of 
moral  responsibility  from  the  shoulders 
of  society  and  throws  it  all  on  the  indi- 
vidual, instead  of  making  a  just  appor- 
tionment of  the  load. 

There  is  comparatively  little  which  is 
constructive  about  this  kind  of  work,  and 
it  is  for  the  most  part  merely  disheart- 
ening. Its  copiousness  and  its  frequent 
exaggeration  have  a  strong  tendency  to 
make  sober  and  sane  citizens  believe  that 
our  political  and  business  evils  cannot  be 
grappled  with  successfully,  not  because 
they  are  in  themselves  too  great,  but 
because  the  moral  fibre  of  the  people  has 
deteriorated,  —  a  heresy  more  dangerous, 
if  adopted,  than  all  the  national  perils 
which  confront  us  to-day,  combined. 

In  the  writer's  birthplace,  the  local  un- 
dertaker was  considered  one  of  the  worst 
men  in  town.  He  suffered  from  having 


i24     THE   LITERATURE  OF  EXPOSURE 

become  incompletely  converted.  The 
work  of  grace  with  him  had  gone  far 
enough  to  convince  him  that  he  was 
an  utter  wretch  and  sinner,  and  so  far 
beyond  redemption  that  there  was 
nothing  which  could  be  done  about  it. 
His  awakened  sense  of  sin  kept  him 
a  sinner.  The  literary  exhorter  whose 
sole  argument  is  human  wickedness  and 
depravity  is  far  too  likely  to  produce  the 
same  kind  of  convert. 

As  every  teamster  knows,  there  is  a 
limit  to  the  amount  of  extra  effort  which 
can  be  got  out  of  a  horse  with  a  whip. 
In  the  same  way  with  the  community, 
the  sense  of  its  own  shortcomings  fails  as 
a  permanent  incentive  to  improvement. 
It  is  as  important  to  the  community  as  it 
is  to  the  individual  that  its  capacity  for 
being  shocked  with  itself  should  remain 
unimpaired.  Nothing  worse  can  happen 
to  it  than  to  have  its  moral  cuticle  hard- 
ened by  much  drubbing,  and  made  insen- 
sitive to  criticism.  The  inherent  defect 


THE   LITERATURE  OF  EXPOSURE     125 

with  much  of  the  literature  of  exposure 
is  that  it  exists  merely  for  the  shock  it 
gives,  and  is  of  no  further  profit  to  the 
community. 

We  have  in  this  country  an  almost 
superstitious  reverence  for  publicity,  as 
though  it  were  a  panacea  for  political 
and  social  evils.  Give  the  people  the 
facts,  is  our  comfortable  doctrine,  and 
conditions  will  remedy  themselves.  But 
diagnosis  and  cure  are  identical  neither 
in  printers'  ink  nor  in  medicine,  and  the 
time  will  come,  even  if  the  writer  be 
wrong  in  thinking  it  is  now  with  us, 
when  the  feeblest  of  tonics  will  do  us 
more  good  than  the  most  drastic  of 
these  modern  literary  emetics. 

It  is  a  curious  fact  that,  when  we  speak 
of  publicity  and  its  value,  we  have  in 
mind  publicity  in  its  narrow  and  re- 
stricted sense,  as  the  searchlight  of  pub- 
lic knowledge  thrown  upon  something 
which  is  wrong.  We  make  it  serve  as  a 
sort  of  social  scavenger,  as  though  that 


i  z6     THE   LITERATURE  OF  EXPOSURE 

were  its  greatest  instead  of  its  very  lowest 
function.  As  though  that  great  instru- 
ment of  civilization  were  being  employed 
at  its  best  task  when  engaged  in  prob- 
ing, with  a  prying-hook,  our  social  gar- 
bage barrels. 

The  lives  and  doings  of  bad  men  are 
too  much  with  us  for  our  own  good. 
Somehow  we  have  conceived  the  notion 
that  it  is  more  important  for  us  to  have 
copious  information  about  the  grafter 
and  the  frenzied  financier,  than  about 
the  men  who,  while  doing  equally,  if 
not  more,  important  things,  are  violating 
no  statute  or  moral  law.  We  need  an 
enlarged  conception  of  the  higher  possi- 
bilities of  publicity  as  an  aid  and  encour- 
agement for  right  living.  We  need  a 
change  by  which  the  honest  merchant, 
banker,  or  professional  man  will  feel 
himself  less  helplessly  isolated  through 
his  honesty  than  he  might  reasonably 
conceive  himself  to  be  from  what  he  gets 
to  read  at  the  news-stands.  What  the 


THE  LITERATURE  OF  EXPOSURE     127 

Bible  says  about  the  inadvisability  of 
man  being  alone  has  special  application 
to  the  honest  man.  It  is  not  well  for 
him  to  be  alone,  and  the  kind  of  pub- 
licity which  makes  him  feel  lonesome  in 
his  honesty  is  not  likely  to  have  a  very 
bracing  effect  on  the  honesty  itself. 

It  has  got  so  with  us  that,  in  affairs 
of  state,  the  surest  way  to  public  notice 
open  to  an  ambitious  politician  is  to  be 
either  a  corruptionist  or  a  blunderer.  For, 
through  these  exaggerations  of  the  im- 
portance of  publicity  for  all  the  appar- 
ently destructive  elements  in  social  or 
political  life,  we  have  come  to  a  point 
where  they  are  the  ones  most  exploited. 
This  attitude  is  hostile  to  progress,  be- 
cause mere  opposition  is  never  progress. 
It  is  as  true  in  the  world  of  affairs  as  in 
that  of  sport,  that  a  community  whose 
energies  are  devoted  to  playing  a  merely 
defensive  game  seldom  wins  any  sub- 
stantial victory.  This  is  the  main  lesson 
to  be  drawn  from  the  general  history  of 


iz8     THE    LITERATURE  OF  EXPOSURE 

reform  movements  in  American  munici- 
palities. These  movements,  until  very 
recent  years,  have  originated  almost  uni- 
formly in  the  moral  delinquencies  of  the 
political  organization  entrenched  in  of- 
fice, which  have  aroused  the  conscience 
of  the  best  citizens  to  revolt.  It  has  been 
mere  revolt.  The  results  of  these  move- 
ments rarely  have  been  permanent,  be- 
cause their  progress  usually  seems  to 
stop  after  putting  the  rascals  out.  The 
ranks  of  reform  are  filled  with  strenuous 
house-wreckers,  but  they  contain  few 
builders.  The  builders  are  not  there,  very 
largely  because  the  community  itself 
seems  to  offer  less  encouragement  than 
it  should  to  those  who  work  for  it.  We 
have  become  so  accustomed  to  criticis- 
ing or  denouncing  our  public  men,  and 
to  devoting  so  much  of  our  public  print 
to  their  mistakes  or  misdeeds,  that  silence 
seems  to  our  exhausted  energies  a  suffi- 
cient tribute  to  the  faithful  public  ser- 
vant. A  friend  of  the  writer's  uncon- 


THE   LITERATURE   OF  EXPOSURE     129 

sciously  expressed  this  spirit  in  speaking 
of  a  young  lawyer  who  was  running  for 
his  second  term  in  the  State  Assembly. 

" made  a  good  record  there  last 

term.  He  did  not  get  a  single  newspaper 
roast  through  the  entire  session."  A  suc- 
cess which  has  to  be  measured  by  abuse 
which  has  been  escaped  rather  than  by 
recognition  gained  is  a  doubtful  prize. 
The  quality  of  our  statesmanship  will 
not  improve  until  the  time  comes  when 
useful  work  of  constructive  legislation 
will  entitle  a  public  servant  to  the  same 
amount  of  public  attention  which  is  now 
to  be  received  by  engineering  a  railroad 
or  gas  grab. 

It  is  accepted  as  a  truism  among  edu- 
cators that  no  child  can  be  made  perma- 
nently good  simply  by  scolding.  The 
over-scolded  child  is  made  worse  by  the 
process,  and  the  over-scolded  politician  is 
equally  likely  to  deteriorate,  and  for  the 
same  reason.  Even  a  good  dog  will  try 
to  earn  a  bad  name,  if  he  has  it  thrust 


130     THE   LITERATURE  OF  EXPOSURE 

upon  him  too  often.  Probably  it  would 
be  an  exaggerated  statement  to  say  that 
the  essential  spirit  of  reform  in  this  coun- 
try is  the  spirit  of  the  scolding  parent, 
but  it  resembles  it  too  often. 

In  New  York,  for  example,  many  of 
the  most  active  of  the  reform  organiza- 
tions of  the  city  have  committees  which 
are  empowered  on  their  own  responsi- 
bility and  without  affirmative  action  from 
the  general  body  of  their  associates  to 
oppose  with  strong  language  and  pep- 
pery protest  legislation  which  they  deem 
it  proper  to  oppose  in  the  name  of  their  re- 
spective organizations.  They  have,  how- 
ever, no  power  whatever  to  endorse  or 
support  anything  without  some  express 
permission  from  the  bodies  by  which 
they  are  created,  a  permission  to  be  ob- 
tained, if  at  all,  only  after  considerable 
delay  and  much  debating. 

The  ability  to  point  out  with  disa- 
greeable clearness  social  evils  and  pub- 
lic perils  is  not  alone  enough  justly  to 


THE   LITERATURE  OF  EXPOSURE     131 

entitle  a  man  to  any  great  amount  of 
public  esteem.  Cassandras  in  breeches  or 
petticoats  are  of  no  more  real  service 
to-day  than  in  the  heroic  age ;  and  the 
miracle  about  the  lady  herself  was  not  so 
much  that  the  Trojans  paid  no  attention 
to  her  forebodings  and  warnings,  but  that 
some  impatient  hero  who  had  work  to 
do  did  not  wring  her  dismal  neck. 

There  has  never  been  a  time  when 
our  country  has  needed  to  have  ideals 
of  service  made  more  fresh  and  attrac- 
tive, or  when  the  real  work  of  the  world, 
done  by  its  sane,  healthy,  and  kind- 
hearted  workers,  needed  greater  recogni- 
tion. It  is  the  good  rather  than  the  bad 
in  us  which  needs  encouragement  and 
exposure,  and  if  it  once  finds  work  to 
do,  the  bad  in  us  will  be  far  less  notice- 
able or  troublesome.  It  is  a  poor  gardener 
who  devotes  too  much  time  to  the  weeds 
at  the  expense  of  the  vegetables  and 
flowers. 

A  story  which  the  present  writer  heard 


1 32  THE  LITERATURE  OF  EXPOSURE 

some  years  ago,  and  which  has  an  obvi- 
ous point  in  connection  with  what  he  is 
trying  to  say  here,  was  told  by  one  of  the 
lobbyists  who  had  been  engaged  in  push- 
ing a  "  grab"  bill  through  the  New  York 
legislature.  The  bill  failed  to  pass,  and 
the  reform  organizations  and  newspapers 
of  New  York  city,  which  had  denounced 
it  and  its  sponsors  in  unmeasured  terms, 
regarded  its  failure  as  one  of  those  rare 
triumphs  of  aroused  public  sentiment  to 
which  the  corrupt  legislators  had  bent 
and  bowed.  The  lobbyist  had  a  curi- 
ously different  version  of  the  matter.  He 
said  the  bill  was  killed  by  an  obscure  par- 
ish priest  in  one  of  the  slum  districts  of 
New  York,  who  somehow  had  got  inter- 
ested in  the  measure,  and  had  come  up 
to  Albany,  and  apparently  with  amaz- 
ing innocence  had  asked  the  ringleader 
of  strike  legislation,  who  was  one  of  the 
active  promoters  of  this  particular  bill, 
to  use  his  influence  against  it.  The  little 
priest  knew  nothing  about  politics,  and 


THE   LITERATURE  OF  EXPOSURE     133 

but  rarely  read  the  papers ;  but  he  had 
known  for  a  lifetime  this  particular  poli- 
tician, and  knew  intimately  a  side  of  him 
not  familiar  to  newspaper  readers.  He 
believed  in  him  implicitly,  and  in  abso- 
lute good  faith  asked  him  to  use  his 
influence  against  the  bill,  and  succeeded. 
According  to  the  lobbyist,  who  presum- 
ably knew  what  he  was  talking  about,  the 
little  priest  had  been  more  powerful  in 
his  influence  against  the  legislation  which 
he  opposed  than  all  the  newspapers  and 
reform  bodies  in  New  York  together. 
He  was  more  powerful  because  he  was 
better  armed.  He  knew  the  good  side 
of  a  bad  man,  and  how  to  appeal  to 
it.  For  it  is  as  true  of  any  of  the  rest  of 
us  as  it  was  of  the  spoilsman,  that  we 
are  willing  to  do  more  to  justify  and 
keep  the  good  opinion  of  our  friends  who 
are  wrong,  than  to  avoid  the  detraction 
of  our  enemies  whom  we  know  in  our 
hearts  to  be  right. 


VI 

THE   CITIZEN   AND   THE 
JURY 


THE  CITIZEN  AND  THE  JURY 

THE  first  thing  the  average  business  man 
does  when  the  jury  notice  is  served  on 
him  is  to  swear.  Then  he  either  looks  up 
his  pull,  that  expressive  American  name 
for  the  underground  railroad  around  the 
law,  or  he  consults  his  lawyer.  For  next 
to  paying  his  taxes  there  is  no  other  re- 
sponsibility of  citizenship  which  seems 
so  galling  to  him  as  the  very  thought  of 
sitting  on  a  jury. 

After  the  affable  Irishman  who  served 
the  hated  paper  on  him  has  left,  he  sits 
with  it  in  his  hand  and  broods  over  the 
bitter  visitation.  He  thinks  of  forty 
matters  he  has  not  thought  of  before 
which  he  now  sees  that  his  business  ab- 
solutely requires  him  to  perform,  and 
which  he  will  be  unable  to  do  because 
he  has  to  serve  on  a  jury.  The  more  he 


138     THE   CITIZEN   AND   THE  JURY 

thinks  about  it,  the  worse  it  becomes, 
until  bankruptcy  stares  him  in  the  face. 
Job  with  his  many  afflictions  never  had 
anything  so  grievous ;  by  divine  mercy 
he  was  not  compelled  in  addition  to  his 
own  woes  to  pass  judgment  on  the  quar- 
rels of  Bildad  and  Elihu.  After  he  has 
vented  his  feelings  for  a  few  more  min- 
utes on  his  clerk  and  the  stenographer, 
he  can  bear  it  no  longer,  so  he  tele- 
phones to  find  out  about  his  pull.  If  he 
has  no  pull,  he  goes  to  see  his  lawyer. 

When  he  puts  the  jury  notice  in  the 
lawyer's  hands,  the  look  of  pleased  anti- 
cipation fades  from  the  latter Js  face. 
Getting  an  old  client  off  the  jury  is  usu- 
ally regarded  by  the  client  as  a  favor  not 
requiring  a  fee,  and  the  lawyer  knows  it. 

"  Did  n't  you  get  another  notice  six 
months  or  so  ago,"  the  lawyer  asks  in  an 
abstracted  tone,  "  telling  you  to  go  down 
to  the  Commissioner  of  Jurors'  office  to 
be  examined  as  to  your  qualifications  as 
a  juror*?"  Yes,  the  man  has  a  vague 


THE   CITIZEN   AND   THE  JURY     139 

recollection  of  some  notice — had  in- 
tended to  take  care  of  it  at  the  time,  but 
had  mislaid  and  forgotten  it.  Moreover, 
he  had  not  paid  much  attention  to  it,  for 
it  was  not  a  regular  jury  notice  anyway, 
as  it  did  not  say  anything  about  going 
to  court. 

"Well,"  says  the  learned  one,  "per- 
haps it  is  n't  too  late  yet.  We  will  look 
and  see  if  you  are  on  the  exempt  list." 
He  takes  down  a  big  book  and  finds 
the  list  of  persons  whom  the  law,  which 
falsely  claims  to  have  no  favorites,  ex- 
empts from  jury  duty,  and  together  they 
scan  it  for  a  means  of  escape.  It  is  a 
fairly  long  list.  To  the  biased  mind  of 
the  afflicted  one,  everybody  appears  to 
be  on  it  but  the  plain  business  man. 

First  comes  the  clergy,  "  ministers  of 
any  religion  officiating  as  such  and  not 
following  any  other  profession."  Now 
through  just  what  special  claims  the 
clergy  is  exempt  from  jury  duty  is  not 
very  plain.  It  appears  to  the  business 


I4o     THE   CITIZEN   AND   THE  JURY 

man's  prejudiced  mind  that  the  men  who 
make  a  life  work  of  talking  about  divine 
justice  and  the  golden  rule  should  seize 
upon  jury  work  as  a  great  opportunity 
for  service  well  within  their  calling,  in- 
stead of  being  the  Abou  Ben  Adhems  of 
the  exempt.  But  his  lawyer,  with  a  touch 
of  professional  cynicism,  assures  him  that 
it  is  easier  to  expound  from  the  pulpit 
theoretical  or  ideal  justice  than  to  bring 
in  a  fair  verdict  in  a  dog  case,  and  adds 
that  there  is  no  demand  in  the  law  courts 
for  jurors  with  lawn  ties  and  reversed 
collars. 

Following  the  ministers  in  the  exempt 
classes  come  the  other  professions  —  the 
lawyers,  the  doctors,  the  teachers,  editors, 
officers  of  railroads  and  vessels,  national 
guardsmen,  honorably  discharged  fire- 
men, and  then  there  is  hope,  —  "  persons 
physically  incapable  of  performing  jury 
duty  by  reason  of  severe  sickness,  deaf- 
ness or  other  physical  disorder."  "  Well," 
the  man  tells  his  lawyer  with  a  sigh  of 


THE   CITIZEN   AND   THE  JURY     141 

relief,  "  I  've  got  a  doctor  who  has  at- 
tended my  family  for  fourteen  years.  If 
he  does  n't  fix  up  a  certificate  that  will 
get  me  out  of  this  jury  business  after  all 
the  money  I  've  paid  him  —  well,  some- 
thing will  drop.  My  hearing  has  never 
been  quite  the  same  since  I  had  a  boil 
in  my  ear  seven  years  ago." 

The  lawyer  looks  at  him  skeptically. 
"  You  should  have  tried  that  on  the 
Commissioner  when  you  got  the  first 
notice  to  come  down  to  see  him,"  he 
says  at  length.  "  Still,  if  you  are  physi- 
cally incapable  of  serving,  and  your 
doctor  makes  up  a  good,  stiff  certificate, 
perhaps  the  judge  will  let  you  off  this 
time.  You'll  get  called  again,  though, 
pretty  soon,  and  have  to  go  through  the 
same  business,  unless  you  get  the  Com- 
missioner to  mark  you  off  his  list." 

With  this  small  crumb  of  comfort, 
the  business  man  goes  up-town.  He 
understands  now  why  Wilkins,  his  cor- 
pulent competitor  in  the  knit  goods  line, 


142     THE    CITIZEN   AND  THE  JURY 

was  for  five  years  the  local  jest  of  his 
suburban  town,  because  of  his  member- 
ship on  the  volunteer  fire  department, 
and  why  Taylor,  the  lace  importer,  is  in 
the  National  Guard.  They  were  exempt, 
or  soon  would  be,  when  the  term  of  ser- 
vice which  the  law  requires  for  exemp- 
tion had  expired.  For  himself,  poor  man, 
not  being  a  member  of  either  of  these 
jury  clubs,  there  is  nothing  but  the  tem- 
porary relief  to  be  afforded  by  the  ac- 
commodating conscience  of  the  family 
doctor. 

Now,  as  a  matter  of  fact,  if  the  dodger 
had  further  inquired,  there  are  plenty  of 
other  good  excuses,  suggested  as  well  as 
sanctioned  by  the  law.  The  death  or 
dangerous  sickness  of  the  juror's  wife 
or  of  a  near  relative,  or  even  of  a  near 
relative  of  his  wife,  will  do.  With  a 
green  or  credulous  judge,  a  well-told 
story  that  the  juror's  "  business  will  be 
materially  injured  by  his  attendance " 
may  be  successful.  But  the  business  man 


THE    CITIZEN    AND    THE  JURY     143 

has  an  almost  superstitious  faith  in  the 
doctor's  certificate.  By  common  tradition 
it  is  a  precious  amulet,  a  potent  charm 
against  jury  business  and  all  its  attendant 
troubles. 

The  hearing  of  the  manifold  excuses 
by  which  a  large  percentage  of  "  drawn  " 
jurors  try  to  avoid  serving  is  part  of 
the  regular  work  of  a  trial  judge  on 
the  opening  day  of  the  court  term,  and 
long  experience  makes  the  average  judge 
exceedingly  suspicious  of  all  kinds  of 
juror's  excuses,  particularly  of  physi- 
cians' certificates.  For  to  such  bad  emi- 
nence has  the  profession  attained  by 
yielding  to  the  pressure  of  "old  patients  " 
suffering  from  incipient  jury  duty,  that 
a  special  statute  has  been  enacted  in  New 
York,  making  it  a  misdemeanor  for  a 
physician  to  give  a  false  certificate  "  for 
the  purpose  of  enabling  a  person  to  be 
discharged,  or  excused,  or  exempted  as 
a  trial  juror."  The  judge  rarely  takes  a 
doctor's  certificate  for  quite  its  face  value, 


i44     THE   CITIZEN   AND   THE  JURY 

and  looks  for  further  evidence  of  the 
juror's  disability. 

Some  years  ago,  a  juror  came  before  a 
Supreme  Court  judge  in  Brooklyn  with 
a  certificate  that  he  was  incapacitated  for 
jury  duty  by  deafness.  The  certificate  was 
couched  in  the  most  technical  of  med- 
ical phraseology,  and  the  judge  gravely 
read  it  through  while  the  afflicted  juror 
stood  by,  his  hand  behind  his  ear,  in  an 
attitude  of  pained  attention.  Finally  the 
judge  looked  up  and  said  softly :  "  I  'm 
sorry  for  you,  sir,  you  can  go  "... 

"Thank  you,"  said  the  delighted  juror, 
starting  to  leave  the  platform. 

"Back  and  sit  down,"  roared  His 
Honor,  "  where  you  will  be  in  readiness 
to  act  as  a  trial  juror  in  this  court.  This 
certificate  is  a  lie." 

Another  doctor's  certificate  story  has 
as  its  subject  a  somewhat  miserly  East 
Side  Jew,  the  owner  of  many  tenements 
in  the  neighborhood  of  Delancey  Street. 
Being  of  a  saving  nature  and  having  no 


THE   CITIZEN   AND   THE  JURY     145 

family  physician,  he  had  gone  to  Gou- 
verneur  Hospital  and  obtained  from  a 
young  ambulance  surgeon  a  certificate 
which  he  presented  with  much  confidence 
to  the  judge.  His  Honor  read  it,  put  on 
his  glasses,  read  it  again,  and  a  quiet 
smile  came  over  his  face.  "  Mr.  Komin- 
sky,"  said  he,  holding  up  the  paper,  "  do 
you  know  what  this  says?"  The  latter 
shook  his  head  mournfully.  "Listen, 
then,  and  see  if  you  understand  it.  '  This 
is  to  certify  that  I  have  carefully  exam- 
ined Ahab  Kominsky,  and  find  his  cere- 
bral contents  such  that  he  is  unfit  to 
serve  as  a  trial  juror.  J.  P.  Ryan,  M.  D.' " 
While  the  clerk  pounded  for  order, 
the  Court  continued  dryly,  —  glancing 
at  the  amused  faces  of  the  other  jurors, 
—  "  Mr.  Kominsky,  I  am  very  sorry,  but 
this  is  not  a  legal  excuse.  If  it  were,  the 
Court  would  often  be  without  sufficient 
jurors  for  its  work.  You  must  serve." 
A  few  moments  later,  when  an  inter- 
preter translated  into  Yiddish  the  mys- 


146     THE    CITIZEN   AND    THE  JURY 

terious  words  "  cerebral  contents  "  to  the 
unfortunate  Kominsky,  his  distress  was 
pitiable.  "  Mein  Gott !  "  he  moaned, 
"that  I  should  give  that  young  doctor 
mans  two  dollars  for  such  a  paper." 

Another  story  of  a  somewhat  similar 
nature  is  told  of  an  East  Broadway  mer- 
chant of  the  same  race,  named  Hyman 
Pelkin.  Having  been  drawn  for  jury 
service  in  the  Supreme  Court  in  New 
York  city,  he  went  down-town  to  the 
court  house  the  day  before  that  on  which 
he  was  summoned  to  appear,  to  see  if  he 
might  learn  of  a  way  of  escape.  In  one 
of  the  parts  of  the  Supreme  Court  there 
is  a  middle-aged  Irish  clerk  known  to  a 
host  of  lawyers  as  "Mac,"  the  rest  of 
his  name  being  shrouded  in  obscurity, 
a  fine  compound  of  kind-heartedness, 
irascibility,  and  a  vast  amount  of  know- 
ledge of  that  branch  of  the  law  known 
as  "practice,"  a  fund  constantly  drawn 
upon  by  lawyers  and  by  lawyers'  clerks, 
who  want  accurate  information  about 


THE    CITIZEN   AND    THE  JURY     147 

such  matters  without  having  to  look 
them  up. 

Hyman  Pelkin  followed  the  procession 
of  inquirers  and  came  to  "Mac,"  who 
listened  sympathetically  to  his  trouble. 
The  Irish  oracle  bethought  him  that  the 
law  requires  a  trial  juror  to  be  worth  two 
hundred  and  fifty  dollars.  "Hyman," 
said  he,  looking  at  his  questioner's  some- 
what shiny  garments,  "are  you  worth 
two  hundred  and  fifty  dollars?"  Hy- 
man did  not  fancy  the  question,  but  he 
grudgingly  admitted  that  he  was  worth 
that  amount,  adding  irrelevantly  that 
he  "  vas  a  poor  man,  and  could  not  pay 
that  much." 

"You  never  were  a  soldier  —  you 
never  got  discharged  as  a  fireman,  did 
you  ? "  continued  his  questioner  face- 
tiously. He  was  amazed  by  the  answer. 

"What,  'a  fireman,'  you  don't  say. 
Why,  you  're  all  right,  Hyman,  my  boy. 
You  get  your  certificate  showing  you 
got  honorably  discharged  and  hand  it  to 


148     THE   CITIZEN   AND   THE  JURY 

the  judge.  He  '11  let  you  off  all  right. 
Get  along,  now,  and  don't  bother  me 
any  more." 

The  following  day,  in  the  list  of  jurors 
with  excuses  appeared  Hyman  Pelkin, 
with  a  document  in  his  hands  which  he 
had  obtained  at  some  labor  and  by  an 
expense  of  fifty  cents.  The  judge  opened 
and  read  it.  The  paper  was  a  certifi- 
cate under  the  great  seal  of  the  Court 
of  General  Sessions,  which  set  forth  that 
a  jury  duly  impanelled  in  that  court  in 
the  case  of  the  People  against  Pelkin  had 
acquitted  the  said  Hyman  Pelkin  from 
the  charge  of  arson  in  the  second  degree, 
and  that  the  court  thereupon  had  ordered 
the  prisoner  discharged. 

"What  does  this  thing  mean?" — 
began  the  puzzled  judge. 

"Your  Honor,"  Hyman  broke  in 
eagerly,  "I  vas  a  fireman  and  I  got 
discharged."  He  was  excused. 

But  there  is  a  serious  as  well  as  a 
comic  side  to  jury  dodging.  The  extent 


THE   CITIZEN   AND   THE  JURY     149 

of  its  practice  by  business  men  is  such 
as  may  be  fairly  called  alarming.  Take 
New  York  city,  for  example.  When 
men  who  are  summoned  to  appear  at 
court  to  serve  on  juries  fail  to  respond  to 
that  summons,  a  fine  is  usually  imposed 
of  from  fifty  to  two  hundred  dollars. 
During  the  last  jury  year  (1904-5),  the 
records  of  the  Commissioner  of  Jurors 
show  that  in  old  New  York  city  (not 
including  Brooklyn)  there  were  such 
fines  imposed  against  some  fifteen  hun- 
dred individuals,  amounting  to  over  one 
hundred  and  fifty  thousand  dollars !  In 
the  Supreme  Court  alone  in  that  city  the 
seven  hundred  fines  thus  imposed  in 
that  year  amounted  to  sixty-six  thousand 
two  hundred  and  seventy-five  dollars. 

These  fines,  it  should  be  remembered, 
are  for  the  most  part  imposed  only 
against  the  men  who,  having  no  plaus- 
ible excuse  of  any  kind,  simply  ignore 
the  jury  notice  entirely.  These  figures 
take  no  account  of  the  infinitely  larger 


150     THE   CITIZEN   AND   THE  JURY 

army  of  jury  dodgers  who  make  up  ex- 
cuses, present  them,  and  get  out  of  jury 
service  without  any  such  penalty  being 
imposed  upon  them.  During  the  same 
period,  in  New  York  city  thirty-three 
thousand  five  hundred  men  were  required 
to  appear  in  the  courts  for  service  as 
jurors — and  of  this  number  only  thirteen 
thousand  six  hundred  and  sixty-nine  ac- 
tually served  —  nearly  twenty  thousand, 
or  sixty  per  cent,  dodged  the  jury  box. 
Statistics  of  other  large  American  cities 
would  undoubtedly  show  similar  per- 
centages. 

As  business  grows  more  complex,  the 
jury  system  year  by  year  is  being  put  to 
severer  tests,  and  its  efficacy  in  the  pur- 
poses of  justice  is  being  daily  questioned 
by  iconoclasts  who  would  destroy  it.  For 
the  commercial  methods  current  in  our 
time  are  not  so  simple  as  they  were  cen- 
turies ago,  and  when  they  are  involved 
in  disputes  between  merchants,  a  higher 
order  of  intelligence  is  required  in  the  jury 


THE   CITIZEN   AND   THE  JURY     151 

box.  The  property  interests  which  must 
be  settled  by  jury  trials  are  infinitely 
greater  than  ever  before.  If  the  jury  sys- 
tem is  not  to  break  down  and  be  dis- 
carded, as  it  practically  has  been  in  Eng- 
land, this  demand  for  intelligent  men 
on  our  juries  must  be  met.  It  will  not 
be  met,  if  business  men  who  have  been 
trained  to  understand  such  matters  shirk 
and  evade  that  work. 

Once  in  a  while  the  jury  dodger,  the 
man  who  is  unwilling  to  devote  any  of 
his  own  time  to  settling  disputes  between 
his  neighbors  in  the  law  courts,  finds  him- 
self in  need  of  an  honest  and  intelligent 
jury  to  pass  on  the  merits  of  a  lawsuit  of 
his  own.  The  writer  is  able  to  record  at 
least  one  such  case.  The  jury  dodger 
in  question  was  a  large  clothier,  and  had 
been  accustomed  to  elude  jury  service 
by  the  annual  donation  of  an  overcoat 
where  it  would  do  the  most  good,  and  he 
made  no  secret  of  this  scheme  by  which 
for  perhaps  a  dozen  years  he  had  avoided 


152     THE   CITIZEN   AND   THE  JURY 

being  "  drawn."  He  was,  however,  a  large 
real  estate  owner,  and  one  day  an  old  Irish 
woman  fell  downstairs  in  one  of  his  ten- 
ement houses  and  promptly  brought  suit 
against  him  for  a  fabulous  sum  which  she 
demanded  for  her  injuries.  When  the  case 
came  to  trial,  it  happened  that  the  list  of 
jurors  from  which  his  twelve  men  in  the 
box  had  to  be  selected  was  precisely 
what  he  deserved.  The  jury  system  in 
his  case  was  just  what  he  and  other  jury 
dodgers  of  his  class  had  tried  to  make  it. 
A  stupider  or  more  irresponsible  looking 
dozen  of  men  would  be  hard  to  get 
together  anywhere.  Only  one  of  them 
evidenced  outwardly  even  the  remotest 
sign  of  prosperity,  and  he  turned  out  to 
be  a  Tenth  Avenue  saloon-keeper.  When 
the  case  was  tried,  the  weight  of  evidence 
was  entirely  against  the  old  woman,  for 
she  had  but  herself  for  a  witness  in  her 
own  behalf,  against  four  or  five  witnesses 
called  by  her  jury-dodging  adversary. 
But  the  jury,  after  listening  apatheti- 


THE   CITIZEN   AND   THE  JURY     153 

cally  to  the  eloquence  of  the  defendant's 
lawyer,  promptly  brought  in  a  verdict 
of  nearly  four  thousand  dollars  against 
him.  It  is  to  be  hoped  that  the  old  lady 
got  her  money,  for  so  far  as  the  defend- 
ant was  concerned,  the  community  had 
furnished  him  with  just  the  jury  to  which 
he  fairly  was  entitled. 

The  man  who  is  too  selfish  to  devote 
any  of  his  own  precious  time  to  the  per- 
formance of  one  of  the  few  direct  personal 
duties  which  in  our  country  the  State 
demands,  surely  has  no  right  to  expect 
that,  when  he  wants  a  jury  for  his  own 
case,  he  will  find  other  business  men  any 
more  ready  than  himself  to  drop  their 
work  and  spend  their  equally  valuable 
time  in  examining  his  lawsuit  and  get- 
ting justice  done  for  him.  So  far  as  he  is 
concerned,  they  have  an  equal  right  to 
be  "  busy." 

It  is  a  curious,  but  very  significant 
fact,  that  the  persons  who  are  most  severe 
in  condemning  the  defects  of  the  jury 


154     THE    CITIZEN   AND   THE  JURY 

system  are  usually  those  who  know  least 
about  it.  The  business  men  who  are 
most  afraid  of  courts  and  lawsuits,  who 
are  most  easily  blackmailed  by  "strike" 
lawsuits  into  paying  unjust  claims  made 
against  them,  and  who  abandon  just  claims 
of  their  own,  in  the  vast  majority  of  cases 
are  men  who  have  had  no  actual  con- 
tact with  the  jury  service  themselves. 
The  best  friends  of  the  jury  system,  on 
the  other  hand,  are  men  who  have  served 
on  juries  themselves,  and  who,  from  per- 
sonal acquaintance  with  it,  know  to  what 
extent  the  plain,  ordinary,  every-day  citi- 
zen can  be  counted  on  to  do  what  is  right 
in  settling  the  disputes  of  litigants.  There 
are,  however,  many  high  class  business 
men  who  make  a  principle  of  serving 
on  juries  when  they  are  called  upon  to  do 
so,  and  who  do  it  freely,  without  grum- 
bling, and  without  making  any  particular 
virtue  of  it.  It  is  rarely  indeed  that  one 
of  these  men  speaks  pessimistically  or 
despairingly  of  the  jury  system  itself. 


THE    CITIZEN   AND    THE  JURY     155 

Sitting  on  the  jury  ought  to  be  con- 
sidered very  well  worth  while  as  a  part 
of  a  business  man's  education.  Every 
man  in  the  business  world  is  practically 
certain  some  time  in  his  life  to  have  a 
lawsuit  of  the  kind  which  a  jury  will 
have  to  settle.  It  would  seem  a  matter 
of  common  sense  for  him  to  know  some- 
thing at  first  hand  about  the  workings 
of  the  system  by  which  his  own  case  will 
have  to  be  decided. 

If  he  serves  once,  even  if  he  grumbles 
and  tries  to  dodge,  the  chances  are  good 
that  he  will  go  more  willingly  the  next 
time.  For  the  public  task  which  jury 
service  imposes  is  really  neither  onerous 
nor  unreasonable.  On  the  contrary,  there 
are  many  incidents  and  much  variety. 
Many  an  acquaintance  made  among  ju- 
rors has,  moreover,  proved  of  advantage 
afterwards.  There  is  always  much  to  be 
learned  there,  including  law,  business, 
and,  above  all,  human  nature. 

Moreover, — a  point  which  the  learned 


156     THE    CITIZEN    AND    THE   JURY 

writers  on  the  jury  system  usually  have 
overlooked  or  ignored,  —  the  justice 
which  it  is  good  for  the  litigant  to  receive 
is  good  for  the  juror  to  give. 

The  greater  part  of  the  ordinary  busi- 
ness man's  working  life  is  a  struggle, 
largely  a  selfish  struggle,  in  a  highly  com- 
petitive commercial  world,  to  get  the 
better  of  his  business  adversaries.  This 
has  a  tendency  to  make  him  see  things 
from  one  side,  and  that  his  own;  to 
make  him  consider  his  interests  as  para- 
mount, to  cause  him  to  overlook,  or  to 
regard  with  indifference  what,  but  for  the 
stress  of  competition,  he  might  consider 
the  rights  of  others.  The  jury  system 
breaks  into  his  business,  and,  by  taking 
him  away  from  it,  puts  him  in  a  position 
where,  for  a  considerable  period  of  time, 
he  must  cease  to  consider  his  personal 
advantage  or  the  detriment  of  his  com- 
petitors, and  must  devote  his  whole  mind 
and  conscience  to  the  high  and  very 
difficult  task  of  doing  justice. 


THE   CITIZEN   AND   THE  JURY     157 

The  jury  system  is  one  of  the  most 
democratic  of  our  institutions.  The  man 
of  wealth  and  education  finds  himself 
seated  in  the  same  jury  box  with  men 
whose  advantages  have  been  fewer,  and 
whose  possessions  are  less.  After  they 
have  risen  together,  and  in  the  simple 
words  of  the  juror's  oath  have  sworn 
"  well  and  truly  to  try  the  issues  joined 
between  plaintiff  and  defendant,  and  a 
true  verdict  render  according  to  the  evi- 
dence," each  in  his  turn  learns  that  the 
love  of  justice  does  not  belong  solely  to 
any  one  class,  but  is  common  to  all, 
and  that  when  the  bias  of  personal  in- 
terest has  been  removed, — and  jury  ser- 
vice is  usually  free  from  such  influences, 
—  the  vast  majority  of  men  believe  in 
fair  play,  and  will  do  their  best  to  help  it 
along. 


VII 

SOME  EQUIVOCAL   RIGHTS 
OF  LABOR 


SOME  EQUIVOCAL  RIGHTS  OF 
LABOR 

THE  American  workingman  is  a  pretty 
good  citizen  on  the  whole,  and  except  on 
rare  occasions  is  law-abiding  enough  to 
suit  any  but  the  over-fastidious  devotee 
of  law  and  order.  Even  the  best  of  us  — 
from  the  trust  magnates  down  —  find  at 
times  some  law  or  decision  which  we  try 
to  steer  around  in  some  peaceable  way, 
and  the  real  difference  between  the  rest 
of  us  and  the  workingman  in  his  occa- 
sional ebullitions  against  government  by 
injunction  is  a  matter  of  manners  rather 
than  morals.  It  is  a  difference  of  method 
rather  than  purpose.  While  we  adjust 
our  course  to  avoid,  by  a  safer  and  more 
circuitous  route,  the  big  rock  of  statutory 
prohibition  to  get  at  what  we  want  in  the 
forbidden  waters  beyond,  the  working- 


1 62      SOME   EQUIVOCAL   RIGHTS 

man  sometimes  tries  to  push  over  the 
rock  itself,  and  comes  to  grief  in  so  doing. 
This  is  what  constitutes  in  the  public 
mind  the  greater  part  of  the  so-called 
"  lawlessness  of  labor." 

To  the  large  public  of  the  well-fed  who 
live  by  their  wits  and  not  by  the  direct 
application  of  physical  labor,  the  grum- 
bling of  the  laborer  against  the  law  seems 
delightfully  simple.  To  this  public  the 
whole  grievance  of  labor,  spelled  with  a 
capital,  is  that  the  law  forbids  the  heav- 
ing of  bricks  at  scabs.  This  legal  prohi- 
bition seems  to  us  the  most  comfortable 
of  doctrines.  The  law  of  brick-throwing 
has  had  so  much  discussion,  and  so  many 
able  efforts  have  been  made,  not  only  by 
the  judges,  but  by  distinguished  writers 
and  public  men,  to  show  the  laborer 
wherein  he  is  wrong  in  so  doing,  that  any 
extended  discussion  here  of  that  subject 
would  be  superfluous.  What  the  writer 
hopes  to  do  is  to  cover  some  matters 
which  far  more  vitally  affect  the  laborer's 


OF   LABOR  163 

attitude  toward  the  law  and  the  courts, 
and  which,  more  than  the  "  government 
by  injunction  "  fetich,  constitute  those  in- 
dustrial problems  of  labor  which  must 
find  some  time  an  ultimate  solution  in 
law.  They  are  matters  of  which  the  gen- 
eral public  has  little  knowledge,  and 
which,  if  better  known,  would  insure 
perhaps  a  more  sympathetic  attitude 
toward  the  workingman's  point  of  view. 

Stated  as  concretely  as  possible,  the 
principal  difference  between  the  working- 
people  and  the  courts  lies  in  the  marked 
tendency  of  the  courts  to  guarantee  to 
the  workman  an  academic  and  theoretic 
liberty  which  he  does  not  want,  by  deny- 
ing him  industrial  rights  to  which  he 
thinks  he  is  ethically  entitled.  His  griev-  J 
ance  is  that  in  a  multitude  of  instances 
the  courts  give  what  seems  to  him  coun- 
terfeit liberty  in  the  place  of  its  reality. 

A  few  illustrations  of  this  will  make 
the  meaning  clear.  Some  years  ago,  in 
Buffalo,  N.  Y.,  a  girl  about  eighteen 


164     SOME   EQUIVOCAL   RIGHTS 

years  old,  named  Knisley,  was  employed 
in  the  factory  of  one  Pratt.  She  was  at 
work  on  very  dangerous  machinery,  which 
had  no  safety-guards  to  protect  her  from 
injury,  in  spite  of  a  statute  of  the  State 
requiring  such  machinery  to  be  guarded. 
The  girl  had  her  hand  caught  in  the  re- 
volving wheels,  and  it  was  so  crushed 
and  torn  that  the  arm  had  to  be  cut  off 
at  the  shoulder.  This  statute  which  re- 
quired safety-guards  on  this  machinery  had 
been  passed  at  the  urgent  insistence  of 
New  York  labor  unions,  so  that  working 
men  and  women,  by  such  additional  pre- 
cautions enjoined  upon  their  employers, 
should  have  safer  places  in  which  to  do 
their  work.  This  employer,  Pratt,  had 
violated  this  humane  statute,  and  by  that 
violation  the  young  girl  lost  her  arm. 
She  sued  Pratt  for  damages,  and  got  a 
verdict  from  a  jury  in  her  favor.  The 
highest  court  of  New  York  took  away 
that  verdict  and  dismissed  her  case.  The 
court  said  that  the  girl  fully  understood 


OF   LABOR  165 

the  danger  to  which  her  employer's  vio- 
lation of  law  had  exposed  her.  She  had 
the  "  right,"  it  declared,  to  assume  the 
risk  of  injury  and  keep  at  work  at  this 
machine,  notwithstanding  the  danger  to 
which  she  was  exposed.  The  judges  said 
that  because  she  kept  at  work,  knowing 
the  danger,  she  was  presumed  to  have 
agreed  with  her  employer  to  waive  any 
claim  of  damages  from  him  in  case  she 
was  hurt.  She  had  a  right  to  do  this, 
notwithstanding  the  requirements  of  the 
statute  which  ordered  him  to  protect  her 
safety.  Instead  of  giving  this  girl  the 
actual  and  substantial  right  which  the 
statute  provided  for  her,  —  instead  of 
declaring  that  she  had  a  right  to  work 
in  safety,  —  they  gave  her  an  academic 
right,  the  right  to  work  in  danger,  to 
accept  danger  and  suffer  by  it  without 
redress. 

In  a  State  in  which,  every  year,  there 
are  more  than  twice  as  many  persons 
killed  in  industrial  establishments  as  were 


1 66       SOME    EQUIVOCAL   RIGHTS 

killed  in  the  Spanish  war;  in  which,  in 
addition  to  the  killed,  forty  thousand  em- 
ployees are  annually  crippled,  maimed, 
or  wounded,  such  a  decision,  guarantee- 
ing to  working  men  and  women  the 
right  to  endure  unnecessary  danger,  and 
effectually  denying  their  right  to  safety 
in  their  work,  is  bound  to  create  some  dis- 
satisfaction among  the  working-classes. 
Labor's  right  to  get  killed,  guaranteed 
by  decisions  of  which  this  New  York 
case  is  but  a  characteristic  example,  is 
not  highly  esteemed  by  the  people  to 
whom  this  guarantee  is  given.  The  coun- 
terfeit liberty  is  no  more  satisfactory 
to  its  recipient  than  is  the  counterfeit 
dollar. 

The  workingman's  standpoint  is  per- 
haps more  likely  to  receive  sympathy 
when  his  safety  is  not  merely  a  matter  of 
his  own  concern,  but  involves  the  safety 
of  the  public  as  well.  A  very  recent 
Texas  case  of  this  kind  affords  a  good 
illustration  of  the  difference  in  the  eyes 


OF  LABOR  167 

of  the  law  between  the  locomotive  en- 
gineer's right  to  safety  and  that  of  the 
public  traveling  on  his  train.  This  case, 
though  tried  in  Texas,  involved  the  con- 
struction and  application  of  a  statute  of 
Arizona  enacted  to  prevent  railroads  from 
overworking  their  employees ;  to  protect 
not  only  the  railway  employees  from 
physical  exhaustion,  but  the  public  from 
accidents  occasioned  by  that  exhaustion. 
This  statute  prohibits  the  employment  of 
a  certain  class  of  railway  employees,  in- 
cluding locomotive  engineers,  for  more 
than  sixteen  consecutive  hours,  without 
an  allowance  of  nine  hours  for  rest.  It 
is  a  statute  remarkable  not  so  much  for 
what  it  prohibits  as  for  what  it  permits. 
In  1903,  a  locomotive  engineer  on  the 
Atchison,  Topeka,  and  Santa  Fe,  named 
Smith,  after  working  in  Arizona  for  sev- 
enteen consecutive  hours,  started  for  his 
home  to  rest  and  sleep.  He  was  sent  for 
immediately  by  the  master  mechanic, 
and,  against  his  protest  that  he  needed 


i68     SOME    EQUIVOCAL    RIGHTS 

rest,  was  set  at  work  again,  the  master 
mechanic  assuring  him  that  the  run  would 
not  take  more  than  five  or  six  hours  at 
the  most.  But  the  run  lasted  fourteen 
hours  more,  and  after  thirty-one  hours  of 
continuous  service,  unavoidable  drowsi- 
ness came  over  the  engineer.  He  slept 
in  his  cab  with  his  train  on  the  main  line 
of  the  railroad.  There  was  a  collision 
near  El  Paso,  Texas,  with  another  train, 
by  which  he  and  others  were  hurt.  The 
highest  court  in  Texas  says  that  the  in- 
juries of  the  engineer  were  his  own  fault, 
and  that,  while  the  railroad  was  liable  to 
passengers,  it  was  not  responsible  to  the 
engineer.  It  says  that  the  violation  by 
the  railroad  of  this  reasonable  statute,  in 
overworking  the  engineer  beyond  human 
endurance,  "  would  not  excuse  the  con- 
tributory negligence  of  Smith  "  (the  en- 
gineer), "which  arose  from  his  working 
for  such  a  length  of  time  that  he  was  un- 
fitted for  business.  He  knew  his  physical 
condition  far  better  than  the  railroad 


OF   LABOR  169 

company  could  know  it,  and  cannot  ex- 
cuse his  carelessness  in  falling  asleep  on 
his  engine  while  it  was  standing  on  the 
track,  by  the  fact  that  he  was  required  by 
the  master  mechanic  to  take  out  a  train 
after  he  had  been  at  work  for  seventeen 
hours." 

The  logic  of  this  decision,  like  that  of 
hundreds  of  others  of  similar  character, 
is  absurdly  simple,  and  to  the  workman 
absurdly  unjust.  The  reasoning  of  the 
court  is  that  this  man  could  have  refused 
to  work  if  he  was  tired,  and  could  have 
taken  his  chances  of  an  almost  certain 
discharge  from  employment.  The  deci- 
sion is  simply  one  of  a  thousand  judg- 
ments which  declare  to  the  workman 
what  is  to  him  a  worthless  and  academic 
liberty,  —  a  liberty  which  exists  without 
law  or  the  declaration  of  courts,  —  the 
right  to  lose  his  job.  It  scarcely  needed 
a  legal  decision  to  tell  this  engineer  that 
he  could  throw  up  his  job  if  he  did  not 
want  to  work  thirty-one  hours  on  a 


170     SOME   EQUIVOCAL   RIGHTS 

stretch.  The  law  the  workman  wanted 
was  a  law  which  would  place  reasonable 
limitation  on  the  duration  of  his  labor 
without  costing  him  his  position.  If  to  lose 
his  job  was  the  only  way  he  could  derive 
benefit  from  this  statute,  which  forbade 
his  road  to  overwork  him,  then  the  stat- 
ute was  and  is  of  as  much  practical  use 
to  him  and  his  fellows  as  Pat's  insur- 
ance :  "  It 's  foine,  but  I  have  to  be  dead 
to  get  it." 

The  enormously  increasing  number  of 
railroad  accidents  in  this  country,  com- 
pared with  other  countries,  has  attracted 
much  attention.  The  greater  number  of 
deaths  thus  occasioned  are  of  railway 
employees,  but  there  are  enough  passen- 
gers killed  every  year  to  make  the  legal 
status  of  the  railway  employee,  as  regards 
his  right  to  safety  while  at  work,  impor- 
tant to  the  public,  as  well  as  to  him  and 
his  fellows.  The  safety  of  the  railroad 
employee  is  too  closely  bound  to  that 
of  the  passenger  to  be  separated  in  the 


OF   LABOR  171 

eyes  of  the  law.  When  the  collision 
comes,  the  engineer  may  die  first,  but 
the  passengers  are  there  in  the  cars  right 
behind  him. 

These  two  illustrations  might  be  mul- 
tiplied, but  further  examples  would  add 
little.  The  workman  does  not  want  the 
vain  liberty  so  often  declared  to  him  by 
the  courts,  of  throwing  up  his  job  and 
looking  for  another.  He  does  not  take 
kindly  to  the  judicial  affirmations  to  him 
of  the  right  to  be  maimed  without  re- 
dress, or  to  be  killed,  by  his  employer's 
indifference  to  his  safety.  His  grievance 
is  not  directly  with  the  courts  and  law. 
The  workman  knows  little  about  the 
law,  and  most  of  what  he  understands  he 
does  not  like.  He  objects  to  the  eco- 
nomics on  which  these  killing  decrees 
are  rendered  against  him.  He  does  not 
call  it  economics,  but  at  the  bottom  the 
real  trouble  from  the  workman's  point 
of  view  is  the  blindness  of  courts,  which 
do  not  seem  to  notice  or  to  understand 


1 72      SOME    EQUIVOCAL   RIGHTS 

the  social  and  economic  conditions  under 
which  he  has  to  work.  For  the  law 
still  embodies  in  these  decisions  an  out- 
worn philosophy,  the  old  laissez-faire 
theory  of  extreme  individualism.  This 
theory  resolutely  closed  its  eyes  to  all 
common,  obvious,  social  and  economic 
distinctions  between  men,  considered 
either  as  individuals  or  as  classes,  and 
with  self-imposed  blindness  imagined 
rather  than  saw  the  servant  and  his  mas- 
ter acting  upon  a  plane  of  absolute  and 
ideal  equality  in  all  matters  touching 
their  contractual  relation;  both  were 
free  and  equal,  and  the  proper  function 
of  government  was  to  let  them  alone. 
If  the  servant  was  dissatisfied  with  the 
conditions  of  his  employment ;  if  the 
dangers  created,  not  merely  by  the  neces- 
sities of  the  work,  but  by  the  master's 
indifference  to  the  safety  of  his  men, 
were  in  the  eyes  of  the  latter  too  great 
to  be  endured  with  prudence,  then,  be- 
ing under  J:his  theory  a  "  free  agent  "  to 


OF   LABOR  173 

go  or  stay,  if  he  chose  to  stay,  he  must 
take  the  possible  consequences  of  per- 
sonal injury  or  death. 

To  the  workingman  of  to-day  this 
theory  embodies  the  liberty  of  barba- 
rism,— the  "freedom"  of  the  Stone  Age. 
This  freedom  is  to  him  not  liberty,  but 
injustice. 

The  history  of  the  modern  trade-union 
movement  is  comprised  for  the  most 
part  in  the  workman's  struggle  for  three 
morally  sound  economic  rights,  —  the 
right  to  fair  pay,  the  right  to  fair  hours, 
the  right  to  decent  conditions  under  which 
to  perform  his  work.  No  inconsidera- 
ble amount  of  violence,  and  sometimes 
bloodshed,  occasioned  by  the  struggles 
for  these  rights,  has  been  due  to  the  fact 
that  the  law  has  not  recognized  them  as 
legal  rights,  but  as  a  substitute  for  them 
has  "  guaranteed  "  the  worker  their  pre- 
cise opposites  as  ironic  forms  of  personal 
liberty. 

There  is  small  comfort  for  the  workers 


174      SOME    EQUIVOCAL   RIGHTS 

who  have  secured  by  strenuous  efforts  the 
passage  of  a  law  reducing  the  number 
of  hours  of  their  labor,  by  forbidding 
their  employers  to  require  more,  to  be 
told  by  the  courts  that  the  constitution 
"  guarantees "  them  the  right  to  work 
fourteen  hours  when  they  want  to  work 
eight,  and  that  the  statute  which  they 
had  secured  by  so  much  effort  is  uncon- 
stitutional because  it  interferes  with 
their  "  freedom  of  contract."  The  right 
the  laborer  sought  by  his  statute  was  the 
right  to  leisure.  The  right  the  court  so 
often  guarantees  him  in  its  stead,  and 
by  its  destruction,  is  the  right  to  work 
unlimited  hours  under  the  stern  laws  of 
necessity.  The  right  to  work  harder  and 
longer  than  he  desires,  or  than  humanity 
should  require,  is  called  by  the  courts 
a  property  right,  and  the  statute  taking 
away  that  right  is  one,  they  declare,  which 
takes  away  property  "  without  due  pro- 
cess of  law."  "  Oh,  wretched  man  that  I 
am,"  says  St.  Paul,  "  who  shall  deliver  me 


OF   LABOR  175 

from  the  body  of  this  death  "?  "  The  laborer 
with  his  constitutional  body  of  death 
groans  also,  and  wonders  if  the  time  will 
ever  come  when  the  right  to  leisure  — 
the  right  to  reasonable  freedom  from  toil 
—  will  become  a  "  property  right,"  and 
be  recognized  by  the  law,  as  it  is  by 
the  workman  himself,  as  an  essential 
part  of  that  constitutional  "  life,  liberty, 
or  property,"  of  which  he  is  not  to  be 
deprived. 

The  guaranteed  right  to  work  with 
an  over-sweated  brow  for  his  bread  is 
not  accepted  by  the  workman  as  a  great 
judicial  ark  of  liberty.  To  get  rid  of  this 
liberty  he  organizes  in  increasing  num- 
bers, and  strikes  and  lockouts  follow,  so 
that  industry  shall  recognize  and  give 
to  him  the  liberty  which  the  law  has 
refused.  He  says  if  the  law  will  not  give 
him  the  right  to  reasonable  leisure,  he  will 
take  it  for  himself.  When  the  United 
States  Supreme  Court,  a  few  months  ago, 
declared  the  bakeshop  Eight  Hour  Law 


176      SOME    EQUIVOCAL   RIGHTS 

unconstitutional,  and  guaranteed  to  bak- 
ers sweltering  at  underground  ovens  in 
New  York  the  right  to  work  fourteen 
hours  a  day,  under  the  frightful  condi- 
tions in  which  their  work  has  to  be  done, 
strikes  of  bakers  followed.  Such  strikes 
seem  to  follow  such  decisions. 

One  of  the  rights,  economic  and 
moral,  perhaps,  but  not  yet  legal,  for 
which  workmen  have  been  struggling  for 
a  quarter  of  a  century,  is  for  decent  con- 
ditions under  which  to  do  their  work. 
Some  progress  has  been  made  in  certain 
directions,  but  the  main  work  is  yet  un- 
done. How  indifferent  their  success  has 
been  in  gaining  legal  support  for  the 
safety  of  their  labor  has  been  indicated  in 
an  earlier  part  of  this  paper.  The  dan- 
ger of  accidents,  however,  usually  can 
be  avoided,  by  constant  vigilance.  But 
the  danger  to  health,  life,  and  character, 
from  having  to  work  in  the  unsanitary 
hovel,  the  badly  lighted,  unventilated, 
and  unclean  tenement;  the  destruction 


OF    LABOR  177 

of  the  home  by  those  remorseless  laws  of 
industry  which  seem  to  compel  the  help- 
less worker  in  the  sweated  trades  to  turn 
his  home  into  a  factory,  are  incalculable. 
A  law  which  guarantees  to  the  worker  a 
right  to  destroy  his  own  home  is  as  valua- 
ble to  him  as  one  which  should  guarantee 
his  right  to  commit  suicide.  The  law, 
however,  forbids  the  quick  process  of 
self-inflicted  death. 

There  is  among  the  yellow  volumes  of 
the  New  York  Court  of  Appeals  Reports 
a  decision  rendered  twenty  years  ago, 
which  means  to  the  worker  in  the  tene- 
ments, in  the  sweated  trades,  precisely 
what  the  Dred  Scott  decision  meant  to 
the  slave,  —  a  guarantee  of  bondage. 
On  its  face  it  is  a  guarantee  of  liberty. 
Read  by  any  business  man  or  broker,  by 
a  reader  unfamiliar  with  the  tenement 
problem,  by  any  banker  sensitive  to 
property  rights,  it  is  a  splendid  judicial 
utterance  in  the  defense  of  fundamental 
individual  rights.  By  such  readers,  this 


1 78     SOME   EQUIVOCAL   RIGHTS 

famous  decision  cannot  be  read  without 
feeling  what  Rufus  Choate  would  call 
"a  thrill  of  sublimity." 

Read  by  the  tenement  worker  or 
sweated  toiler  in  the  needle  trades,  this 
same  decision  is  like  a  voice  which  sen- 
tences him  to  penal  servitude  for  life. 
The  case  referred  to  is  the  famous  Tene- 
ment House  Cigar  case,  In  Re  Jacobs. 
It  declares  unconstitutional  a  sweeping, 
badly  drawn  statute,  enacted  through  the 
efforts  of  a  cigar-makers'  union,  which 
prohibited  the  manufacture  of  cigars  and 
the  preparation  of  tobacco  in  any  form 
in  tenement  houses.  The  cigar-makers 
knew  what  the  conditions  were  in  which 
they  had  to  work  in  their  own  homes. 
The  statute  which  they  had  drawn  was, 
from  their  point  of  view,  for  the  protec- 
tion of  the  tenement  worker's  home ;  was 
to  be  the  entering  wedge  for  further  en- 
actments of  the  same  character.  Sweep- 
ing and  broad  as  were  the  provisions 
of  the  statute,  the  decision  of  the  court 


OF   LABOR  179 

against  its  constitutionality  was  equally 
sweeping. 

One  of  the  most  intelligent  students 
of  our  social  problems,  a  woman  whose 
life  has  been  chiefly  spent  in  studying 
and  bettering  the  condition  of  the  poor, 
and  who  is  thoroughly  familiar  with  the 
conditions  of  which  she  writes,  says  in  a 
recent  book  of  this  Jacobs  case :  "  To  the 
decision  of  the  Court  of  Appeals  in  the 
case7#  Re  Jacobs,  is  directly  due  the  con- 
tinuance and  growth  of  tenement  manu- 
facture and  of  the  sweating  system  in  the 
United  States,  and  its  present  prevalence 
in  New  York.  Among  the  consequences 
and  the  accompaniments  of  that  system 
are  congestion  of  the  population  in  the 
tenement  districts,  the  ruin  of  home  life 
in  the  dwellings  used  as  workrooms,  child 
labor  in  the  homes,  endemic  diseases  (es- 
pecially tuberculosis)  due  to  the  over- 
crowding and  poverty  of  skilled  work- 
ers, the  chronic  pauperism  of  thousands 
of  skilled  working-people  during  a  part 


i8o     SOME    EQUIVOCAL   RIGHTS 

of  the  year  in  a  series  of  important  trades, 
insanity  due  to  overwork  followed  by 
anxiety  over  a  prolonged  period  of  un- 
employment, and  suicide  —  the  self-in- 
flicted death  of  a  garment-worker  being 
of  almost  daily  occurrence  in  New  York 
and  Chicago." '  These  harsh  and  bitter 
words  are  —  let  us  remember  —  written 
of  a  decision  which  guarantees  to  the 
worker  the  right  to  work  in  his  own 
home  ! 

Other  illustrations  to  show  the  reason 
for  the  attitude  of  the  workman  toward 
the  courts  might  be  given,  but  are  not 
needed.  They  would  simply  afford  fur- 
ther data  to  emphasize  the  same  point,  — 
the  apparent  fundamental  difference  be- 
tween the  worker  and  the  judge  on  the 
very  definition  of  liberty.  It  need  not 
be  claimed  that  the  worker's  point  of 
view  is  absolutely  correct ;  it  need  not 
be  asserted  that  the  things  he  has  asked 

1  Florence  Kelley,  in  Some  Ethical  Gains  through 
Legislation. 


OF   LABOR  181 

from  the  courts  and  has  been  refused 
have  all  been  such  as  in  the  long  run 
would  be  best  for  him.  The  whole  point 
to  be  noticed  is  simply  this :  that  by  the 
working-class  ideal  of  liberty  a  special 
demand  is  made  on  the  law,  —  a  demand 
more  frequently  refused  than  granted. 
What  it  demands  from  the  courts  is  the 
recognition  and  protection,  and  at  times 
the  creation,  by  law  of  the  worker's  eco- 
nomic rights.  The  law,  on  the  other 
hand,  guarantees  to  him  the  ancient  and 
largely  negative  individual  liberty,  free- 
dom from  legal  restraints,  the  right  to 
do  any  unforbidden  thing  he  wants  to, 
—  if  he  can,  —  and  tells  him  to  shift  for 
himself  for  his  economic  rights.  The 
worker's  discontent  with  the  law  lies  in 
the  fact  that  it  guarantees  him  individ- 
ual, and  not  social  or  industrial,  free- 
dom. 


VIII 
CRIMINAL   LAW   REFORM 


CRIMINAL  LAW  REFORM 

DOWN  in  the  Cherokee  nation  they  tell 
a  story.  The  Cherokee  nation  is  in  the 
division  of  territory  which  is  known  to 
the  Federal  authorities  as  the  Western 
District  of  Arkansas,  and  which  includes 
the  Indian  Territory.  It  is  a  fairly  law- 
less country,  with  a  good  many  bad  In- 
dians and  outlaws  in  it.  It  takes  a  man 
to  be  a  law  officer  there,  a  brave  man,  a 
strong  man,  and  one  "  quick  on  the  trig- 
ger," for  it  is  a  dangerous  job.  Back  in 
the  early  nineties,  a  deputy  marshal  and 
an  Indian  were  sent  in  the  name  of  the 
law  after  an  escaped  convict,  and  they 
went  out  into  the  bad  lands  after  him. 
About  nightfall  they  came  to  a  house, 
where  they  stopped  and  went  to  bed. 
At  midnight  two  men  galloped  up  to 
the  house.  One  was  a  convicted  mur- 


1 86        CRIMINAL   LAW    REFORM 

derer  and  fugitive  from  justice,  but  not 
the  man  whom  the  marshal  was  after,  and 
the  other  was  a  "bad  man"  named 
Brown.  They  shouted  until  this  mar- 
shal and  his  comrade  came  out,  shot  them 
both  deliberately  in  cold  blood,  killed 
them,  and  rode  away.  The  convict  was 
killed  later,  resisting  arrest.  Brown,  the 
other  man,  was  caught  and  brought  to 
trial  for  murder.  My  story  relates  a  con- 
versation about  this  murder  trial  which 
is  said  to  have  taken  place  in  a  law  office 
in  the  Territory,  between  another  deputy 
marshal —  a  friend  of  the  murdered 
man — and  a  Cherokee  Strip  lawyer. 
The  talk  took  place  shortly  after  the 
Supreme  Court  of  the  United  States  had 
for  the  third  time  reversed  Brown's  con- 
viction for  murder. 

"Jake,"  said  the  marshal,  "  why  does  n't 
the  court  down  in  Washington  let  us 
hang  Brown  ?  "  "  There  was  an  error  in 
the  judge's  charge,"  said  the  lawyer. 
"  Did  n't  we  prove  Brown  murdered 


CRIMINAL   LAW   REFORM        187 

Tommy  Whitehead?"  demanded  the 
marshal.  "  Yes,"  said  the  lawyer,  "  they 
said  on  the  first  appeal  years  ago  that  the 
evidence  was  strong."  "Did  they  say  it 
was  n't  cold-blooded  murder,  premedita- 
tion, and  all  that?"  "No,"  said  the 
lawyer,  "  they  did  n't  make  any  point 
about  that."  "Then  why  have  they 
robbed  the  gallows  of  that  man  three 
times  running  ?  "  "  Well,"  said  the  law- 
yer, "  as  I  told  you  before,  they  found 
there  was  error  in  the  judge's  charge. 
You  would  n't  understand  it.  It  was  re- 
versed on  the  law,  not  on  the  facts.  The 
judge  made  an  error  in  trying  the  case." 
The  marshal  was  silent  for  a  few  minutes. 
"  Jake,"  he  said  finally,  "  that  error  you 
say  I  would  n't  understand  was  n't  the 
first  error  in  Brown's  case.  I  reckon  I 
understand  it  now.  The  first  error  in 
Brown's  case  was  partly  mine.  When 
Brown  was  gathered  in  six  years  ago, 
there  was  some  talk  about  lynching  him. 
I  let  on  that  they  couldn't  do  it:  that 


1 88        CRIMINAL   LAW    REFORM 

we  would  stand  by  the  law ;  that  if  they 
tried  lynching,  we  would  shoot  to  kill. 
That  was  the  first  error  in  Brown's  case. 
I  don't  know  what  kind  of  law  they 
need  in  Washington.  Down  here  in  the 
Indian  Territory  they  need  the  kind 
that  has  blood  and  bones  to  it,  —  and  the 
next  time  I  won't  stand  in  its  way." 

This  is  not  a  paper  on  lynch  law. 
But  as  the  existence  and  increase  of  the 
lynching  evil  affords  one  of  the  clear- 
est, if  not  the  greatest,  arguments  for  the 
reform  of  our  criminal  law,  this  story 
is  repeated  here.  It  is  given  because  it 
illustrates  clearly  the  two  essential  con- 
ditions by  virtue  of  which  lynch  law  has 
become  the  great  peculiar  American  dis- 
grace. 

A  lynching  in  its  ordinary  aspect  is 
not  an  individual  but  a  community 
crime.  It  has  two  factors.  The  sensa- 
tional, the  obvious,  but  not  the  more 
essential  factor  is  the  brutal  animal  pas- 
sion for  quick  revenge,  the  lust  for  blood, 


CRIMINAL   LAW    REFORM        189 

found  among  many  men  in  whom  im- 
pulse is  stronger  than  reason.  The  men 
controlled  by  these  lawless  passions  and 
instincts  are  comparatively  few  in  num- 
ber, and  negligible  in  influence.  The  chief 
factor  in  the  community  spirit  by  which 
lynch  law  is  made  possible  is  not  the 
brutal  passion  of  this  riotous  minority, 
-  it  is  the  attitude  of  the  majority  of 
the  community  toward  the  law.  They 
will  not  hold  the  rope  or  fire  the  fagot, 
but,  like  this  old  marshal  of  the  bad 
lands,  they  have  lost  faith  in  the  crimi- 
nal law,  —  they  will  not  stand  by  it  and 
protect  it,  —  they  will  not  fight  for  it. 

Social  wrongs  are  corrected,  not  by 
exposing  their  results,  but  by  searching 
for  and  removing  their  causes.  We  have 
preached  against  lynch  law  for  a  decade, 
but  it  increases.  The  wisest  of  Ameri- 
can statesmen  and  public  men  are  to-day 
recognizing  the  fact  that  this  preaching 
law  and  order, will  not  make  it,  that 
there  is  no  stopping  this  fever  in  our 


190        CRIMINAL   LAW    REFORM 

blood  until  respect  and  love  for  law  has 
taken  the  place  of  apathy.  Law,  to  be 
respected,  must  be  made  respectable. 
To  get  for  it  the  active  support  of  moral 
men  and  women,  to  make  them  willing 
to  fight  to  protect  its  dignity  from  out- 
rage, it  must  have  vitality,  —  must,  as 
the  old  deputy  marshal  said,  have  "blood 
and  bones." 

It  is  because  the  importance  of  vital- 
izing our  criminal  law  is  being  recog- 
nized as  one  of  the  pressing  reforms 
which  the  country  needs,  that  men  like 
President  Roosevelt  and  Secretary  Taft 
are  preaching  it  and  urging  it  on. 

We  are  none  of  us  desirous  of  destroy- 
ing the  humane  and  ancient  safeguards 
which  in  our  country  are  the  just  pro- 
tections of  the  innocent.  But  as  a  South- 
ern jurist  has  aptly  said,  "  We  have  long 
since  passed  the  period  when  it  is  possi- 
ble to  punish  an  innocent  man.  We  are 
now  struggling  with  the  problem  whether 
it  is  any  longer  possible  to  punish  the 


CRIMINAL   LAW    REFORM        191 

guilty."  Law  which  lacks  grip  and  vital- 
ity, which  is  slow  and  uncertain,  full  of 
technical  avenues  of  escape  for  the  guilty, 
cannot  be  respected,  for  it  is  not  respect- 
able. The  support  of  law-abiding  citi- 
zens cannot  be  had  for  the  law  of  courts 
which  reverse  convictions  of  criminals 
found  guilty  on  clear  and  indisputable 
evidence,  for  reasons  which  revolt  the 
rudimentary  sense  of  justice,  —  which 
grant  new  trials  to  convicted  murderers, 
solely  because  the  trial  judge  was  absent 
for  three  minutes  from  the  bench  during 
the  trial ;  because  the  words  "  on  his 
oath  "  were  left  out  of  a  paper  which 
accused  a  murderer  of  crime;  because 
the  man  who  summoned  the  jury  panel 
to  try  the  murderer  had  not  been  sworn 
in;  because  on  the  trial  of  a  murderer 
the  trial  judge  had  failed  to  put  his  in- 
structions in  writing;  because  (on  the 
trial  in  which  was  convicted  a  murderer, 
guilty  beyond  peradventure)  among  the 
seventeen  propositions  of  law  with  which 


192        CRIMINAL   LAW    REFORM 

the  trial  judge  had  charged  the  jury,  one 
too  abstruse  for  their  comprehension  had 
been  incorrect ;  because,  among  the  thou- 
sand questions  asked  in  a  long,  hard- 
fought  trial,  "  error  "  had  crept  into  two 
of  them ;  —  which  reverse  on  a  quibble 
the  conviction  of  a  murderer  who  had 
almost  been  lynched  at  the  time  of  his 
arrest,  although  "  the  evidence  as  a  whole 
warranted  conviction ;  "  which  reverse 
the  conviction  for  grand  larceny  of  a 
notorious  thief  caught  with  his  booty  in 
his  possession,  because  the  proof  failed 
to  show  whether  the  money  stolen  was 
in  cash  or  bills.  All  these  decisions  are 
taken  from  the  highest  courts  of  States 
notoriously  disgraced  by  the  lynching 
evil.  Further  multiplication  of  illustra- 
tions of  the  same  kind  might  readily  be 
made,  but  would  add  nothing  but  cumu- 
lative evidence  of  conditions  crying  for 
change. 

In  many  of  these  States  a  criminal  trial 
means  two  things.    It  means  not  only 


CRIMINAL   LAW    REFORM        193 

the  sifting  of  the  evidence  of  guilt  or  in- 
nocence of  an  accused  person,  —  it  means 
also  a  rigid,  schoolboy  examination  of 
the  trial  judge  on  the  law.  If  the  accused 
be  found  guilty  on  sufficient  evidence, 
but  the  judge  has  not  passed  a  perfect 
examination,  there  must  be  a  new  trial. 
The  counsel  for  the  accused  prepares, 
after  long  deliberation  before  the  trial, 
propositions  of  law,  voluminous,  intri- 
cate, carefully  studied,  and  which  have 
some  theoretic  or  possibly  practical  appli- 
cation to  the  case  to  be  tried.  When  the 
trial  comes,  and  after  the  evidence  of  the 
witnesses  has  all  been  taken  and  the  judge 
has  given  his  charge  to  the  jury,  the 
lawyer  brings  out  these  "  propositions  " 
and  unfolds  them.  He  says,  "I  request 
the  court  further  to  instruct  the  jury  as 
follows."  He  reads  his  first  proposition. 
The  judge  must  then  decide  at  once, 
with  little  opportunity  for  deliberation, 
on  the  correctness  and  applicability  of 
this  law  proposition.  He  must  either  add 


194        CRIMINAL   LAW    REFORM 

it  to  his  charge  to  the  jury,  or  refuse  to 
do  so.  If  he  refuses,  the  prisoner's  lawyer 
says,  "  I  except,"  and  proceeds  to  his 
next  proposition,  and  then  on  through 
the  list.  In  case  his  client  is  found  guilty, 
these  propositions  which  were  refused 
are  argued  as  "  errors "  on  appeal.  On 
the  appeal  in  the  higher  court,  the  testi- 
mony taken  and  the  proceedings  of  the 
trial  are  printed,  and  those  alleged  "  er- 
rors" argued  before  judges  having  the 
same  abundant  leisure  and  opportunity 
for  reflection  upon  these  propositions 
which  the  lawyer  enjoyed  who  prepared 
them,  but  which  the  judge  who  passed 
on  them  at  the  trial  did  not  have.  The 
Appellate  Court,  examining  solemnly 
each  of  those  propositions  (and  there  are 
sometimes  fifteen  or  twenty  of  them  in 
a  single  case),  finds  one  which  should 
have  been  charged.  It  may  have  been 
one  which,  as  a  matter  of  fact,  the  jury 
would  never  have  understood.  But  that 
makes  no  difference.  The  guilt  of  the 


CRIMINAL   LAW    REFORM        195 

convicted  man  may  be  clear,  but  he  gets 
a  new  trial.  He  keeps  on  getting  a  new 
trial  until  the  lower  court  judge  can  pass 
a  perfect  examination  on  every  material 
proposition  of  law  put  before  him  on 
the  trial,  and  has  correctly  decided  every 
squabble  between  the  opposing  lawyers 
over  any  matter  of  imaginable  substance. 
Then,  the  law  being  satisfied,  justice  can 
be  done.  As  the  mass  of  technical  rulings 
and  decisions  of  the  higher  courts  in- 
creases, the  more  difficult  it  becomes  for 
the  lower  court  judge,  who  must  follow 
them  as  precedents,  to  know  them  all,  to 
pass  his  perfect  examination,  and  avoid 
these  legal  pitfalls  which  mean  the  delay 
of  public  justice  by  interminable  new 
trials. 

There  is  little  comfort  to  be  found, 
moreover,  in  the  fact  that  the  vast  ma- 
jority of  criminal  cases  are  disposed  of 
without  such  appeals.  For  every  techni- 
cal decision  which  sacrifices  or  disregards 
the  substantial  rights  of  a  law-abiding 


196        CRIMINAL   LAW    REFORM 

community,  and  permits  the  escape  or 
reprieve  of  some  convicted  rascal,  makes 
a  precedent  which  affords  like  comfort 
to  every  other  rascal  who  can  bring  his 
case  within  its  protection. 

In  many  of  these  States  in  which  the 
criminal  is  more  important  than  the  com- 
munity, the  position  which  the  law  com- 
pels the  trial  judge  to  occupy  is  almost 
pitiful.  He  seems  shorn  of  all  positive 
authority,  and  of  all  power  to  direct  and 
control  the  machinery  of  justice.  He 
is  more  like  an  umpire  or  referee  in  the 
game, — a  passive  figure,  whose  sole  func- 
tion is  to  enforce  or  apply  rules ;  only 
there  are  more  rules  in  the  law-game, 
and  the  legal  umpire's  decision,  if  wrong, 
is  not  final,  but  means  that  a  new  game 
must  be  played. 

Just  why,  in  a  country  in  which  the 
vast  majority  of  judges  are  elected  by 
popular  vote,  there  should  be  expressed 
in  law  such  a  superstitious  terror  lest 
a  judge  should  give  any  expression  of 


CRIMINAL   LAW    REFORM        197 

his  own  personality,  is  puzzling  in  the 
extreme.  In  many  States,  and  particu- 
larly in  those  in  which  a  firm  and  vigor- 
ous administration  of  justice  is  of  urgent 
importance,  the  judge  who  presides  at 
a  criminal  trial  is  not  permitted  by  law 
to  be  a  judge  in  any  real  or  vital  sense. 
He  must  not  comment  on  the  evidence, 
he  must  not  review  the  facts  and  set 
them  in  coherent  order  before  the  jury, 
he  must  not  sift  the  testimony  and  sep- 
arate the  material  from  the  immaterial, 
he  must,  above  all  things,  refrain  from 
expressing  in  any  wise  a  personal  opinion 
on  anything,  from  the  start  of  the  trial 
to  its  close.  He  must  deal  out  abstract 
rules  of  law,  and  with  such  blind  guid- 
ance, leave  the  jury  to  their  own  devices 
in  endeavoring  to  apply  that  law  to  the 
facts.  If  he  sees  them  swayed  by  mis- 
leading eloquence,  he  must  not  set  them 
in  the  path  of  reason  for  justice's  sake. 
He  is  a  pilot  who  must  not  touch  the 
wheel.  The  vigorous,  commanding  fig- 


198        CRIMINAL   LAW    REFORM 

ure  of  the  English  judge  is  by  law  ex- 
cluded from  the  great  majority  of  our 
criminal  courts.  For  example,  the  sum- 
mary of  facts  in  the  charge  which  Jus- 
tice Bigham  gave  a  few  years  ago  to  an 
English  jury  in  the  sensational  case  of 
Whittaker  Wright,  the  swindling  pro- 
moter, would  have  meant  an  inevitable 
reversal  and  new  trial  for  "error"  in 
any  lynch  law  State  in  this  country. 

The  critics  whom  conditions  of  this 
kind  have  aroused  are  not  solely  among 
the  laity.  The  demand  for  reform  comes 
from  an  increasing  number  of  law  ex- 
perts, who  see  in  the  criminal  law  itself 
the  great  wrong  reason  for  the  growth 
of  American  lawlessness.  "  Respect  for 
the  constitution  is  one  thing,  and  respect 
for  substantial  fairness  of  procedure  is 
commendable;  but  the  exaltation  of 
technicalities  merely  because  they  are 
raised  on  behalf  of  an  accused  person  is 
a  different  and  very  reprehensible  thing. 
There  seems  to  be  a  constant  neglect  of 


CRIMINAL   LAW    REFORM        199 

the  pitiful  cause  of  the  injured  victim 
and  the  solid  claims  of  law  and  order. 
All  the  sentiment  is  thrown  to  weight 
the  scales  for  the  criminal,  —  that  is,  not 
for  the  mere  accused  who  may  be  as- 
sumed innocent,  but  for  the  man  who 
upon  the  record  plainly  appears  to  be  the 
villain  the  jury  have  pronounced  him 
to  be." 

This  balancing  the  scales  for  the  crim- 
inal, which  Professor  Wigmore  deplores 
in  the  caustic  sentences  just  quoted,  is 
also  appreciated  by  the  criminal  classes. 
A  negro  arrested  for  a  murder  in  the 
Indian  Territory  told  his  captor  very 
coolly  that  "there  was  a  man  shot  in 
Oswego,  and  nothing  was  done  about 
it."  This  quotation  is  from  the  record 
of  the  United  States  Supreme  Court,  to 
which  this  negro's  case  had  to  be  ap- 
pealed three  times  before  his  conviction 
was  affirmed,  showing  that  the  murderer's 
confidence  in  the  law  was  at  least  in  part 
justified. 


200        CRIMINAL   LAW    REFORM 

The  jurist  who  dissented  from  each 
of  the  reversals  of  this  negro's  conviction 
for  murder,  who  protested  vainly  against 
the  reversals  of  the  conviction  of  the 
Cherokee  Strip  murderer,  by  which  that 
murderer  finally  escaped  the  gallows, 
believes  in  the  abolition  of  the  right  of 
appeal  in  criminal  cases.  This  is  the 
English  system.  But  when  Judge  Brewer 
announced  this  as  his  remedy  for  the  in- 
tolerable condition  of  our  criminal  law, 
some  years  ago,  it  found  little  favor.  It 
did  not  impress  our  people  as  the  Ameri- 
can remedy  for  what  is  an  American 
disease.  The  right  of  appeal  is  an  inte- 
gral part  of  the  American  ideal  of  jus- 
tice. We  look  askance  at  the  English 
system,  under  which  the  innocent  Becker 
was  twice  convicted  and  punished  for 
two  separate  crimes,  neither  of  which  he 
committed.  We  hesitate  to  adopt  in 
America  a  system  under  which  such  in- 
justice is  possible.  The  right  of  appeal 
has  legitimate  uses.  Without  that  right, 


CRIMINAL   LAW    REFORM        201 

Caleb  Powers  in  Kentucky  would  have 
been  hanged  four  years  ago. 

Our  criminal  law  is  essentially  Ameri- 
can and  not  English.  We  must  not  tear 
the  fabric  in  removing  the  spots.  We 
must  not  in  despair  seize  a  desperate 
remedy. 

With  all  its  defects,  American  crimi- 
nal law  represents  in  its  spirit,  as  does 
perhaps  no  other  branch  of  our  law,  the 
great,  original  American  ideal  of  indi- 
vidual liberty,  —  the  rights  of  the  indi- 
vidual as  against  the  state,  —  on  which 
our  government  is  founded.  When  our 
forefathers  first  began  American  govern- 
ment, they  adopted  the  English  common 
law  covering  civil  cases,  but  they  did 
not  adopt  to  the  same  extent  English 
criminal  law.  When  we  declared  our 
independence  and  began  the  work  of 
founding  a  government  of  our  own,  Eng- 
land was  operating  a  criminal  law  in 
which  the  state  was  everything  and  the 
individual  nothing,  and  under  which  the 


202        CRIMINAL   LAW    REFORM 

liberty  of  the  press  was  a  theory  and  a 
name.  It  was  a  system  under  which  one 
hundred  and  sixty  crimes  were  punisha- 
ble by  death ;  under  which  a  man  on  trial 
for  his  life  on  a  charge  other  than  trea- 
son could  not  have  counsel  to  address 
the  jury  in  his  behalf,  could  not  testify 
for  himself,  or  have  his  witnesses  sworn, 
could  not  subpoena  witnesses  for  his 
defense ;  under  which  the  jury  could  be 
punished  if  they  brought  in  a  false  ver- 
dict against  the  Crown,  but  not  if  that 
verdict  was  against  the  miserable  pris- 
oner in  the  dock.  We  refused  to  adopt 
the  barbarous  and  bloody  legal  shambles 
of  that  criminal  law.  We  reacted  against 
it.  We  established  a  system  by  which 
the  individual  was  surrounded  by  mighty 
bulwarks  of  legal  protection  against  any 
possibility  of  wrong  or  oppression  from 
the  state.  We  created  a  criminal  law 
the  most  humane  in  the  world,  but  it 
had  and  has  the  defect  of  its  virtues.  In- 
,  stead  of  a  system  which  over-protected 


CRIMINAL   LAW   REFORM        203 

the  state,  we  erected  one  which  over-pro- 
tects the  individual. 

While  we  did  not  adopt  the  barbarous 
penal  statutes  of  the  old  country,  we  did 
adopt  a  mass  of  technical  rules  of  law, 
which  were  invented  by  humane  English 
judges  to  avoid  the  necessity  of  imposing 
barbarous  punishments.  We  had  not 
adopted  the  barbarous  punishments,  and 
we  should  not  have  adopted  the  humane 
technicalities  which  those  punishments 
alone  excused  or  justified.  The  present 
trouble  in  our  criminal  law  lies  not  only 
in  what  we  have  created,  but  largely  in 
what  we  have  thus  adopted.  The  human- 
ity which,  by  those  technicalities,  made 
justice  in  spite  of  law  a  century  ago  in 
England,  makes  law  in  spite  of  justice 
in  America  to-day.  The  vermiform  ap- 
pendix of  old  English  law  must  be  cut 
away. 

There  are  two  reasons  why  criminal 
law  reform  is  a  pressing  problem  to-day. 
One  is  the  repression  by  that  reform  of 


204        CRIMINAL   LAW    REFORM 

lynch  law.  The  other  is  not  less  impor- 
tant. We  need  that  reform  because  the 
social  condition  of  our  day  imperatively 
demands  a  substantial  increase  in  the 
scope  and  power  of  the  criminal  law,  a 
system  strong  enough  to  meet  the  new 
and  increasing  requirements  of  our  civ- 
ilization for  corrective  and  repressive 
criminal  law. 

A  system  too  complicated  to  deal  out 
certain  justice  to  common  offenders,  ig- 
norant and  brutal,  poor  in  purse  and  in- 
fluence, can  never  adequately  deal  with 
our  new  class  of  big  business  criminals, 
with  the  men  who  get  rich  by  fraud,  the 
corporation  inflaters  and  wreckers,  the 
faithless  trustees  and  grafting  directors, 
the  exploiters  of  municipalities,  the  mag- 
nates who  give  bribes  and  the  bosses  who 
take  them,  the  trust  operators  who  sin 
against  honesty  in  business,  who  break 
the  law  against  monopolies,  who  give 
and  take  forbidden  rebates.  How  can 
predatory  wealth,  powerful,  influential, 


CRIMINAL   LAW    REFORM        205 

often  intrenched  in  office,  be  punished  by 
a  system  which  creaks,  groans,  and  often 
breaks  down,  in  bringing  a  border  ruf- 
fian to  justice? 

President  Roosevelt  is  not  alone  in  his 
disgust  at  his  inability  to  get  at  what  he 
aptly  described  on  his  recent  Southern 
trip  as  "  my  own  particular  scoundrels," 
the  thieves  in  Federal  officialdom.  His 
experience  is  not  an  unusual  one.  It  re- 
presents the  rule  rather  than  the  excep- 
tion. The  frightful  disclosures  of  the 
corruption  of  the  Police  Department  in 
New  York  made  by  the  Lexow  investiga- 
tion are  not  yet  forgotten,  nor  the  almost 
complete  absence  of  convictions  obtained 
from  the  criminal  courts  of  those  whose 
blackmail  operations  filled  hundreds  of 
the  sickening  pages  of  that  committee's 
testimony.  The  more  recent  experience 
of  Mr.  Folk  is  worth  noting.  He  con- 
victed the  St.  Louis  boodlers,  Faulkner, 
Lehman,  Schneller,  and  big  "Ed"  But- 
ler, the  boss  of  St.  Louis,  for  bribery,  and 


206        CRIMINAL   LAW    REFORM 

one  of  them  for  perjury.  These  cases 
made  a  sensation  all  over  the  country. 
A  great  city  was  being  cleaned.  The  big 
boodlers  were  being  brought  to  justice, 
—  civic  righteousness  was  triumphing, 
the  newspapers  told  us  from  one  end  of 
the  land  to  the  other. 

Does  the  country  know  that  all  these 
convictions  subsequently  were  reversed? 
Does  it  know  that  the  decision  that  re- 
versed the  conviction  of  Butler  himself 
ordered  his  discharge  from  the  custody 
of  the  law  on  so  narrow  a  construction 
of  the  statute  against  bribery  on  which 
he  was  convicted  that,  if  it  is  followed, 
bribery  is  as  safe  in  St.  Louis  as  directing 
an  insurance  company  in  New  York? 

Space  will  not  permit  a  discussion  of 
those  cases  separately.  One  brief  cita- 
tion must  suffice  to  indicate  the  spirit  in 
which  the  highest  court  of  Missouri  met 
its  responsibility  when  men  guilty  of  the 
highest  crimes  against  the  very  existence 
of  the  State  were  brought  to  its  bar. 


CRIMINAL   LAW    REFORM        207 

This  is  from  Faulkner's  case :  — 
"  This  record  contains  so  much  un- 
contradicted  evidence  of  venality  that  it 
is  little  wonder  that  decent  people  of  all 
classes  are  appalled  at  its  extent.  The 
sole  consideration  of  this  court  has  been 
to  determine  whether  the  defendant  was 
convicted  in  compliance  with  the  laws  of 
the  State.  If  guilty  the  defendant  should 
be  punished,  but  it  is  the  high  and 
solemn  duty  of  this  court,  from  which 
it  shall  not  shrink,  to  require  and  exact 
that,  however  guilty  he  may  be,  he  shall 
be  punished  only  after  having  been  ac- 
corded every  right  and  guarantee  which 
the  organic  law  of  the  State  secures  to 
him." 

The  court  then  reverses  the  convic- 
tion for  bribery  of  a  man  clearly  found 
guilty  on  a  record  "  reeking  with  venal- 
ity," for  two  minor  errors  in  the  rules  of 
evidence,  and  a  quibble  about  a  "  vari- 
ance" between  the  indictment  and  an 
instruction ! 


208        CRIMINAL   LAW    REFORM 

As  I  write,  the  afternoon  paper  at  my 
elbow  contains  a  notice  of  the  third  in- 
dictment of  Senator  Burton  of  Kansas. 
The  public  will  remember  the  charges 
made  against  him  two  years  ago  as  a 
part  of  the  post-office  scandal.  He  was 
tried  and  convicted  in  1903  for  taking  a 
so-called  retainer  of  $500  a  month  while 
Senator,  for  using  his  influence  with  the 
Post-Office  Department  in  favor  of  a 
concern  called  "  The  Rialto  Grain  and 
Securities  Company,"  which  feared  that 
the  Post-Office  Department  would  issue 
a  fraud  order  against  it.  Burton's  con- 
viction was  reversed  on  appeal  because 
of  a  "  variance  "  between  the  indictment 
and  the  proof  as  to  where  he  got  this 
money.  The  indictment  said  he  got  it 
in  Washington,  and  the  proof  showed 
that  he  got  it  in  St.  Louis.  After  this 
reversal,  a  new  indictment  was  found 
against  him  in  St.  Louis  in  March,  1905. 
Thereupon  Burton's  lawyer  successfully 
raised  technical  objections  against  it,  and 


CRIMINAL   LAW    REFORM        209 

it  was  "  quashed."  The  Grand  Jury  has 
now  been  hastily  called  together,  and  a 
new  indictment  found,  and  the  news- 
paper says  that  if  this  latest  indictment 
is  found  defective,  Burton  will  escape 
trial  altogether,  as,  through  the  lapse  of 
time,  the  statute  of  limitations  wilt  pre- 
vent a  new  indictment  being  found 
against  him. 

It  is  this  spirit  in  the  courts  which 
makes  for  lawlessness  among  the  people, 
gives  confidence  to  the  criminal,  encour- 
aging him  to  continue  in  his  career. 

In  most  American  States,  the  person 
accused  of  crime  has  thrown  around  him 
by  law  not  only  extraordinary  protec- 
tions against  injustice,  but  also  opportu- 
nities of  escape  more  numerous  than 
exist  in  any  other  jurisprudence  in  the 
world.  Consider  a  few  of  them.  When 
the  accused  person  is  arrested,  he  is 
brought  before  a  magistrate,  who  ex- 
amines his  accusers  and  hears  their  evi- 
dence to  see  whether  there  are  reasonable 


210        CRIMINAL   LAW    REFORM 

grounds  for  believing  that  a  crime  has 
been  committed  and  by  him.  If  the  ma- 
gistrate thinks  this  evidence  is  insufficient 
to  warrant  such  a  belief,  the  prisoner 
goes  free.  If  he  thinks  it  sufficient,  the 
case  goes  to  a  grand  jury.  There  again 
the  witnesses  are  heard,  their  testimony 
scrutinized  and  weighed.  If  the  grand 
jury  finds  the  evidence  insufficient,  it 
refuses  to  indict,  and  the  prisoner  goes 
free.  If  it  indicts  him,  the  district  attor- 
ney or  prosecuting  official  next  scruti- 
nizes and  studies  this  evidence  of  the 
crime  charged.  If  he  thinks  it  is  not  suf- 
ficient to  secure  a  conviction,  he  recom- 
mends that  the  indictment  be  dismissed, 
and  the  prisoner  goes  free.  If  he  thinks 
it  sufficient,  and  the  indictment  is  brought 
to  trial,  the  lawyer  for  the  accused  may 
induce  the  court,  after  hearing  the  evi- 
dence, to  dismiss  the  charge,  and  the 
prisoner  goes  free.  If  the  judge  does 
not  dismiss  the  indictment,  or  direct  the 
jury  to  acquit  the  prisoner,  the  jury 


CRIMINAL   LAW    REFORM        211 

deliberates  on  the  evidence,  and  if  it 
finds  for  the  accused,  he  goes  free.  If  it 
finds  against  him,  the  prisoner  has  one 
and  sometimes  two  or  three  successive 
appeals  which  he  may  take  to  a  higher 
court. 

At  what  a  disadvantage  does  organ- 
ized society  struggle  for  justice  to  obtain 
the  punishment  of  the  guilty !  In  every 
criminal  law  suit,  on  one  side  is  a  living, 
visible,  concrete  personality,  —  the  man 
or  woman  accused  of  crime.  On  the  other 
is  nothing  but  an  invisible  abstraction, 
—  the  ideal  of  justice.  It  has  no  voice  ; 
if  wronged  or  outraged,  it  has  no  appeal, 
for  under  the  American  system  the  state, 
the  people,  cannot  appeal  from  the  ver- 
dict of  acquittal,  and  with  that  verdict 
the  prisoner  must  go  free.  When  a  jury, 
led  away  by  the  eloquence  of  a  gifted 
lawyer,  or  by  mawkish  sentiment,  brings 
in  a  verdict  which  acquits  a  criminal 
of  a  clearly  proven  crime,  the  ideal  of 
justice,  wronged  by  that  verdict,  suffers. 


212        CRIMINAL   LAW    REFORM 

But  how  few  are  those  who  see  and  feel 
that  wrong,  in  comparison  with  those 
who  daily  plead  for  unmerited  freedom 
for  wrong-doers  who  have  sinned  against 
the  law !  Against  what  odds  —  what 
great  difficulties  overcome  —  does  organ- 
ized society  in  our  country  to-day  win 
its  victories  in  our  criminal  courts!  As 
we  study  its  struggles  for  vindication  by 
law,  the  ideal  of  justice  which  punishes 
wrong,  which  protects  by  that  punish- 
ment the  rights  of  the  innocent,  seems 
at  times  not  only  an  abstraction,  but  a 
friendless  abstraction.  When  the  laws 
of  trade  prove  themselves  weak  or  inef- 
ficient, the  commercial  world,  directly 
touched  and  interested,  demands  and 
obtains  their  correction.  Its  associations 
plead  for  statutory  amendments  to  correct 
and  strengthen  the  commercial  code.  But 
among  the  hundreds  of  associations  or- 
ganized wholly  or  in  part  for  the  enact- 
ment of  more  efficient  laws,  where  is 
the  association  whose  special  purpose  is 


CRIMINAL   LAW    REFORM        213 

to  make  society  stronger  to  punish  the 
guilty,  to  vindicate  the  majesty  of  justice 
by  criminal  law  ? 

It  is  because  such  associations  do  not 
exist,  because  this  great  question  of 
criminal  law  reform  has  no  active  or- 
ganization behind  it  and  depends  for  its 
success  on  the  occasional  efforts  of  asso- 
ciations of  lawyers,  that  a  public  discus- 
sion of  the  necessity  of  that  reform  is 
needed.  It  may  be  said  that  this  subject 
is  a  dull  one,  and  that  the  problems  which 
this  reform  presents  are  expert  questions 
for  the  jurist,  the  bar  associations,  and 
through  them  the  legislatures.  To  a 
certain  point  this  is  true  of  course,  but 
there  is  need  that  these  bodies  of  experts 
and  the  legislatures  should  feel  upon 
them  the  pressure  of  an  enlightened 
popular  demand,  or  this  reform  so  much 
needed  will  be  slow.  It  is  not  a  matter 
for  experts  alone  to  observe  that  of  all 
the  great  civilized  countries  of  the  world, 
America  is  the  one  in  which  crime  in- 


214        CRIMINAL   LAW    REFORM 

creases,  while  it  diminishes  in  the  others. 
It  is  not  for  the  law  experts  alone  to  note 
that  four  times  as  many  murders  were 
committed  in  our  country  last  year  as 
were  committed  here  twenty  years  ago, 
and  that  other  felonies  tend  to  increase 
in  like  proportion. 

The  subject  which  this  essay  has  con- 
sidered is  in  this  sense  a  great  public 
question  —  one  on  which  an  enlightened, 
earnest,  widespread  public  sentiment  can- 
not be  aroused  too  soon.  When  that 
public  opinion  has  been  so  aroused,  and 
its  just  demand  has  been  felt,  then,  and 
no  sooner,  will  be  done  the  work  of 
adding  strength  to  our  criminal  law,  — 
of  giving  it  certainty  and  speed  to  equal 
its  justice,  —  then,  and  not  till  then, 
shall  we  be  cleansed  of  the  shame  of 
lynch  law,  and  become  a  law-abiding 
people,  under  a  law  which  protects  the 
innocent  and  punishes  the  guilty. 


EUctrotyped  and  printed  by  H .  O.  Hougftton  «5r»  Co. 
Cambridge,  Mass.,  U.S.A. 


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